The State V. Francis C. Okoye & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

ADEKEYE, J.C.A.

This is an appeal against the two rulings of the High Court of the Federal Capital Territory; Abuja delivered on the 8th and 23rd of September, 2005 respectively. The facts of this case before the lower court briefly are as follows: Pursuant to a FIAT issued on the 10th of September, 2004 and signed by the then Attorney General of the Federation and Minister of Justice Chief Akinlolu Olujimi, the law firm of Chief Afe Babalola SAN &: Co filed an application ex-parte for leave to prefer a charge in the Federal Capital Territory High Court, Abuja on the 28th of September, 2004. The court granted leave to prefer a four count charge against the respondents as follows:

Charge No. 1

“That you Francis C. Okoye (a.k.a. Ebubedike), Emmanuel Nnamdi Nnakwe (a.k.a. Aboy), Marcel Nnakwe, Emeka Orjiakor, Christopher Okwara Mbah (a.k.a. Persus), Olisaemeka Igbokwe (a.k.a. Holy War), Chuchuka Ezeukwu and Jude Ugwu (a.k.a. Agada) on or between October 2001 to December 2003 at different places in the Federal Capital Territory and Anambra State, agreed to do or cause to be done an illegal act to wit cause the death of Dr. (Mrs.) Dora Akunyili, Director-General, National Agency for food and Drugs Administration and Control (DG NAFDAC) and that the said act was attempted to be done in pursuance of an agreement and that you thereby committed an offence punishable under section 97 of the Penal Code.”

Charge No.2

“That you Francis C. Okoye (a.k.a. Ebubedike), Emmanuel Nnamdi Nnakwe (a.k.a. Aboy), Marcel Nnakwe, Emeka Orjiakor, Christopher Okwara Mbah (a.k.a. Persus), Olisaemeka Igbokwe (a.k.a. Holy War), Chuchuka Ezeukwu and Jude Ugwu (a.k.a. Agada) on a day in the month of October 2001 at about 7pm at DG NAFDAC’s residence on Freetown Crescent, Wuse II, Abuja did act, to wit, caused unknown gunmen to invade the residence of Dr. (Mrs.) Dora Akunyili, Director-General, National Agency for Food and Drugs Administration and Control (DG NAFDAC) and forcibly entered the rooms in the House in search of the said Dora Akunyili for the purposes of firing gun shots at her with such intention and/or knowledge and under such circumstances that if by that act you had caused the death of the said Dora Akunyili, you would have been guilty of culpable homicide punishable with death and that you thereby committed an offence punishable under section 229 of the Penal Code.”

Charge No. 3

“That you Francis C. Okoye (a.k.a. Ebubedike). Emmanuel Nnamdi Nnakwe (a.k.a. Aboy). Marcel Nnakwe, Emeka Orjiakor, Christopher Okwara Mbah (a.k.a. Persus), Olisaemeka Igbokwe (a.k.a. Holy War), Chuchuka Ezeukwu and Jude Ugwu (a.k.a. Agada) on the 26th day of December, 2003 at Agulu in Anambra State, did an act to wit, caused gunshots to be fired at Dr. (Mrs.) Dora Akunyili, Director-General, National Agency for food and Drugs Administration and Control (DG NAFDAC) while driving inside her Peugeot 406 Saloon Official car with such intention or knowledge and under such circumstances that if by that act you had caused the death of Dr. (Mrs.) Dora Akunyili DG NAFDAC, you would have been guilty of culpable homicide punishable with death and that you thereby committed an offence punishable under section 229 of the Penal Code.”

Charge No.4

“That you Francis C. Okoye (a. k. a. Ebubedike), Emmanuel Nnamdi Nnakwe (a.k.a. Aboy), Marcel Nnakwe, Emeka Orjiakor, Christopher Okwara Mbah (a.k.a. Persus), Olisaemeka Igbokwe (a.k.a. Holy War), Chuchuka Ezeukwu and Jude Ugwu (a.k.a. Agada) on the 26th day of December, 2003 at Agulu in Anambra State, did commit culpable homicide punishable with death in that you caused the death of one Emeka Onuekutu by doing act to wit caused several gun shots to be fired at Dr. (Mrs.) Dora Akunyili, DG NAFDAC, while driving inside her Peugeot 406 Saloon Official car which gun shot missed their target but instead hit the deceased inside his Mitsubishi L 300 Minibus with Reg. No. AE763AJL with the intention of causing the death of and/or with the knowledge that the death of the said Emeka Onuekutu would be the probable consequence of your act thereby committed an offence punishable under section 221 of the Penal Code.”

At the commencement of trial, the 2nd and 3rd respondents gave an indication that they were going to file notice of preliminary objection to set aside the FIAT of the Attorney General directing Chief Afe Babalola & Co to charge and prosecute all the forementioned accused persons for the offences on the charge and secondly that they also intended to challenge the jurisdiction of the High Court of the Federal Capital Territory to entertain the charge on the ground that the territorial jurisdiction of the court does not extend to Agulu in Anambra State as regards counts three and four on the charge.

The reliefs in the preliminary objection read as follows:

(1) An order quashing or setting aside the FIAT issued on 10th September, 2004 by the Attorney-General of the Federation to prefer a charge against the 2nd and 3rd accused persons/applicants as it relates to counts 3 and 4.

(2) An order setting aside the order of this Honourable Court of the 13th October, 2004 granting leave to the complaint to prefer a charge in the High Court of the Federal Capital Territory against the 2nd and 3rd accused persons/applicants as it relates to counts 3 and 4.

(3) An order quashing the charge preferred against the 2nd and 3rd accused persons/applicants as it relates to counts 3 and 4 in charge No. CR/28/04.

(4) An order discharging the 2nd and 3rd accused persons/applicants on counts 3 and 4. Pgs 246-248 Volume 1 of the record of appeal.

As at the time the notice of preliminary objection was properly filed and served on the prosecution on the 8th of February, 2005, hearing in the criminal suit had progressed to the stage of cross-examining 3rd prosecution witness. The court entertained the submission of counsel as to hearing the application challenging its jurisdiction at that juncture and before taking further steps in the hearing of the case.

The court immediately found in favour of the suggestion by counsel to the 2nd and 3rd accused persons to defer hearing in the application to the time the accused persons would argue their no case submission in the case. On the 27th of July, 2005, the accused persons argued their no case submission applications, by that time the prosecution had called nineteen witnesses tendered 58 exhibits.

On the 23rd of September, 2005, the learned trial Judge upheld the no case submission of the accused persons in respect of counts one and two on the charge, while he declined jurisdiction on counts three and four. The court went further to declare the leave he initially gave the prosecution to prefer the charge a nullity and set same aside.

Vide pages 246-248 of volume 1 and pages 746-762 of volume 2 of the record of appeal.

Being aggrieved by the rulings of the 8th of February, 2005 and the 23rd of September, 2005 the prosecution appealed to this court. All processes of appeal were filed and the procedure to appeal in accordance with the Court of Appeal Rules, 2002 was complied with.

At the hearing of the appeal on the 17th of April, 2004, the appellant relied on the appellants’ brief filed on 18/5/06, and the reply brief deemed filed on 17/4/07. The appellant raised six issues for determination from the ten grounds of appeal filed as follows:

(1) Whether or not there are enough ingredients of the offences contained in counts 1 and 2 proved by the prosecution to warrant the accused persons to answer those counts as contained in the charge.

(2) Whether or not learned trial Judge is competent to reverse his earlier decision granting leave to prefer the charge and assuming jurisdiction in this case without a proof of new facts or a change of circumstances?

(3) Whether or not grave injustice has not been done to the prosecution by the ruling of the learned trial Judge on the 8th day of February, 2005, deferring the application of the 2nd and 3rd accused persons challenging the jurisdiction of the court which at the time was on the evidence of PW3 till all 19 witnesses of the prosecution were led in evidence and discharged.

(4) Whether or not by the principles of judicial hierarchy and stare decisis of the Nigerian Judicial System, it is permitted to prefer a decision of the Court of Appeal over that of the Supreme Court on a similar issue of fact or principle of law.

(5) Whether or not from the facts and circumstances of this case, the High Court of the Federal Capital Territory can assume jurisdiction to entertain this matter.

(6) Whether or not the FIAT of the Honourable Attorney General and Minister of Justice dated 10th of September, 2004, which authorized the law firm of Chief Afe Babalola (SAN) & Co. to prosecute the accused persons in the High Court of Federal Capital Territory Abuja under the Penal Code can be held to be a nullity under the circumstances of this case.

The 1st respondent in the brief deemed filed on 17/4/07 distilled two issues as follows:

(i) Whether the prosecution established a prima facie case against the 1st respondent/accused

(ii) Whether the offences as charged in count 3 and 4 are Federal or State offences.

The 2nd and 3rd respondents in their joint brief filed on 5/12/06, formulated five issues for determination by this court as follows:

(i) Whether Chief Afe Babalola, SAN & Co was competent or had authority to have charged the 2nd and 3rd respondents in count 4 with the murder of one Emeka Onuekutu .

(ii) Whether the High Court of the Federal Capital Territory Abuja was competent to entertain counts 3 and 4 preferred against the 2nd and 3rd respondents by Chief Afe Babalola, SAN & Co.

(iii) Whether the Attorney General of the Federation is competent to issue FIAT for the purpose of instituting criminal proceedings against the 2nd and 3rd respondents in respect of the offences alleged in counts 3 and 4.

(iv) Whether ground 10 in the appellants’ notice of appeal and issue three distilled therefrom on the exercise of the discretionary powers of the court on case management raises a valid ground of appeal or resulted in grave injustice to the appellant.

(v) Whether a prima facie case was against the 2nd and 3rd respondents as alleged in counts 1 and 2 in view of the contradictions and inconsistencies in the evidence of the prosecution witnesses.

The 4th, 5th and 6th respondents were not represented by counsel and did not file briefs.

The 7th respondent in the brief deemed filed on 6/2/07, settled two issues for determination which are:-

(a) Whether in the face of the admissible evidence, the lower court was right in holding that the 7th accused/respondent had no case to answer in counts 1 and 2

(b) Whether the lower court has jurisdiction to entertain counts 3 and 4 and if the answer is in the affirmative, whether this court should not appraise the evidence and discharge and acquit the 7th respondent.

Learned counsel to the 2nd and 3rd respondents raised a fundamental issue of jurisdiction of court in the entire appeal by filing notice of preliminary objection challenging the competence of the notice of appeal filed by the appellant on the 28th of September, 2005. The objection reads:

“Whether the notice of appeal dated the 28th of September, 2005 and filed by Chief Seeni Okunloye SAN (now late) at the High Court of the Federal Capital Territory, Abuja, but later amended on 14th September, 2006 by adding one additional ground is competent.”

The 2nd and 3rd respondents submitted that the notice of appeal dated the 28th of September, 2005 but later amended on the 14th September 2006 should be struck out for lack of competence as the law firm of Chief Afe Babalola, SAN & Co lacked the authority to have charged the 2nd and 3rd respondents in count 4 with the murder of one Emeka Onuekutu contrary to the limitation conveyed in the FIAT of the Attorney-General. The objection according to the respondent, relates to the fundamental issue of jurisdiction in this appeal. The procedure of initiating an appeal is vital in any appeal process.

In this appeal which is a criminal appeal, the FIAT upon which the appeal is predicated can be found at page 1 volume 1 of the record of appeal and its term of reference or scope of authority is simply to prosecute. The FIAT did not include an authority to appeal or file an appeal against any of the rulings of the trial court where the respondents were prosecuted particularly against the ruling of the trial court delivered on the 24th of September, 2005. The reason being that the scope of the FIAT issued to the law firm was limited to prosecution at the trial court, and Chief Afe Babalola, SAN & Co would require a fresh mandate through another FIAT from the Attorney General of the Federation before they could validly appeal and having not done so, precludes the firm from prosecuting the appeal. He relied on the case of Emeakayi v. C.O.P. (2004) 4 NWLR (Pt.862) 158 at 178 where that was the decision of the Court of Appeal. The respondent urged this court to strike out this appeal.

By way of reply to the objection, the appellant submitted that 2nd and 3rd respondents did not comply with the provisions of Order 3 rule 15(1) of the Court of Appeal Rules, 2002, which stipulated that a respondent intending to rely upon a preliminary objection shall give an appellant three clear days notice thereof before hearing of the appeal. The notice shall set out the grounds of appeal and the respondent shall file such notice together with twenty copies thereof with the Registrar.

The respondents did not pay any filing fees. The objection raised can therefore not be heard in the absence of notice and payment of filing fee. The appellant emphasized that rules of court as to payment of filing fees is mandatory. The appellant cited cases as follows:

Adelakun v. Oruku (2006) 11 NWLR (Pt. 992) pg 625 at pg 648

Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) pg 252

Okolo v. U.B.N. Ltd. (2004) 3 NWLR (Pt. 859) pg 87 at pg 108 – 109

The appellant further submitted that the 2nd and 3rd respondents misinterpreted the decision of Mahmud Muhammed, JCA in the case Emeakayi v. C.O.P (supra) (as he then was) and gave reasons. The authority to prosecute in that case originated from the power conferred by section 69(1) of the High Court Laws of Anambra State and not from the Constitution. The FIAT granted to the law firm of Afe Babalola, SAN & Co gave them wide, total and complete authority to represent the Attorney-General, it was not specific or restricted as in the case of Emeakayi v. C.O.P The Supreme Court held in the case of Tinubu v. I.M.B. Securities Plc (2001) 16 NWLR (Pt. 740) pg 670, that an appeal is a continuation of the case at the lower court. The court is urged to discountenance the preliminary objection.

I shall consider the preliminary objection raised by the 2nd and 3rd respondents challenging the authority of the appellant to prosecute this appeal based on the authority vested by the FIAT of the Attorney-General, Federation.

The appellant on the other hand, challenged the preliminary objection filed by the 2nd and 3rd respondents as lacking in competence for non compliance with Order 3 rule 15(1) of the Court of Appeal Rules. 2002. Order 3 rule 15(1) and (3) of the Court of Appeal Rules, 2002 reads:

“Order 3 rule 15(1)

A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time.

Order 3 rule 15(3)

If the respondent fails to comply with this rule the court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondent or may make such other order as it thinks fit.”

I also emphasize that this provision has been given judicial interpretation in a plethora of cases.

It is of common ground that the purpose of Order 3 rule 15(1) is to give a respondent before hearing of any appeal notice of any preliminary objection to the hearing of the appeal and the grounds thereof in order to enable him to prepare to meet the objection at the hearing of the appeal. The respondent intending to rely on any preliminary objection to the hearing of an appeal shall give the appellant three, clear days notice thereof before hearing, setting out the grounds of the objection. Notice of objection can also be given in the respondents’ brief, but a party filing it in the brief must ask the court for leave to move the objection before the hearing of the appeal commences. From the Rules of court, what is required to be filed is notice of preliminary objection setting out grounds of the objection where the appeal touches the competence and jurisdiction of the lower court.

It will be sufficient if the ground of objection is stated on the face of the notice of preliminary objection especially if such objection is on matters of law. Decided authorities have legitimized incorporating notice of preliminary objection in the respondents’ brief to which an appellant can reply by filing a reply brief.

Any preliminary objection embedded in the brief must comply with the three clear days time limit set by the Rules. A party filing it in a brief must ask the court for leave to move the objection before the oral hearing of the appeal commences.

The rule in Order 3 rule 15 (1) is mandatory in its operation and must be complied with by the respondent before arguments on the grounds for preliminary objection could be raised in his brief of argument.

Nsirim v. Nsirim (1990) 3 NWLR (Pt.138) Pg. 285

A.C.B. Ltd. v. Apugo (1995) 6 NWLR (Pt.399) Pg.65

Ajide v. Kelani (1985) 3 NWLR (Pt.12) Pg.248

Arewa iles Plc. v. Abdullahi and Bros Ltd. (1998) 6 NWLR (Pt.554) Pg. 508.

SCOA (Nig.) Plc. v. Dantatta (2002) 13 NWLR (Pt.785) 461 Maraya Plastics Ltd. v. Inland Bank (Nig.) Plc. (2002) 7 NWLR (Pt.777) Pg. 32.

Bank of the North Ltd. v. Akintoye (1999) 12 NWLR (Pt.631) Pg. 392.

Where no notice was served on the appellant, the preliminary objection is incompetent and should not be considered in the determination of the appeal Okolo v. Union Bank of Nigeria Ltd. (1998) 2 NWLR (Pt. 539) pg 618.

The 2nd and 3rd respondents reflected the preliminary objection in their joint brief which was deemed filed and served on 6/2/07. This appeal was argued on 17/4/07. The appellant filed a reply brief where it responded to the objection. The respondents paid for filing and service of the brief. Rather than the three days notice they gave two months. The respondent complied with Order 3 rule 15(1) of the Court of Appeal Rules, 2002.

Once such notice of objection is incorporated in the respondents brief, the appellant cannot be heard to deny being aware of the notice merely because it did not strictly comply with a specific procedural rule of court.

Ajide v. Kelani (1985) 3 NWLR (Pt. 12) page 248

Maigoro v. Garba (1999) 10 NWLR (Pt. 624) pg 555

Olatunji v. Akande (2006) 2 ERR 962

Respondents’ failure to comply with the procedural provisions under Order 3 rule 15(1) will not derogate from the duty of this court to give consideration to the preliminary objection on its merit in doing substantial justice to the parties.

I hold that there is no merit in the objection. The court shall now give due consideration to the objection raised by the 2nd and 3rd respondents. Is Afe Babalola. SAN & Co adequately clothed with authority to prosecute this appeal against the rulings of lower court’? The answer to this question lies in the content of the FIAT which I reproduce as follows:

“In exercise of the powers conferred upon the Attorney General of the Federation and Minister for Justice Chief Akinlolu Olujinmi, SAN, Honourable Attorney-General of the Federation and Minister of Justice hereby authorize, Chief Afe Babalola, SAN & Co Legal Practitioners to exercise on my behalf the powers conferred upon me as Attorney General of the Federation by section 174(1) of the Constitution of the Federal Republic of Nigeria, 1999 and to prosecute the persons suspected to have participated in the attempt to assassinate the Director General of National Agency for Food and Drug Administration and Control (NAFDAC) in the case of

The State

Vs.

Francis C. Okoye (a.k.a. Ebubedike)

Emmanuel Nnamdi Nnakwe (a.k.a. Aboy)

Marcel Nnakwe, Emeka Orjiakor

Christopher Okwara Mbah (a.k.a. Persus)

Olisaemeka 19bokwe (a.k.a. Holy War)

Chukuka Ezeukwu (a.k.a. lets go)

Jude Ugwu (a.k.a. Agada)

Dated at Abuja this 16th day of September, 2004.

Sign

Vide page 1 Vol. 1 of the record of appeal

The powers conferred on the Attorney-General by virtue of section 174(1) of the 1999 Constitution to be exercised on his behalf reads:

“174(1)(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.”

Section 174(1)(a) gave Afe Babalola, SAN & Co Legal Practitioners wide powers including instituting and prosecuting criminal proceedings against any person in any court of law in Nigeria.

The Constitution is the supreme law of the land and section 174(1)(a) is very clear and unambiguous. It means what it says and it must be applied as such. So that any legal practitioner coming under the description as contained in the Legal Practitioners Act, and not disbarred or under some restriction recognized by the law of the land has the right of appearance and audience before any court based on the wide powers vested by section 174(1)(a) of the 1999 Constitution,

In effect and giving the foregoing its appropriate interpretation, Afe Babalola, SAN & Co legal practitioners shall institute and prosecute the accused persons mentioned in the FIAT before any court of law in Nigeria. Since it is the superior courts of record that have jurisdiction to entertain the offence disclosed in the FIAT, the powers vested therein cover prosecution in these courts at all levels from the High Court to the Court of Appeal and finally to the apex court.

Furthermore, an appeal is not the inception of a new case. An appeal is generally regarded as a continuation of the original suit rather than an inception of a new action.

Oredoyin v. Arowolo & Ors. (1988) 4 NWLR (Pt. 114) pg 172 at pg 211

Tinubu v. I.B.M. Securities Plc (2001) 16 NWLR (Pt.740) pg 670

An appellant is a person who resorts to an appellate court for a review of a decision made against him by a lower court, and includes a legal practitioner representing such a person in that behalf.

Padawa v. Jatau (2003) 5 NWLR (Pt. 813) pg 247

Ichu v. Ibezue (1999) 2 NWLR (Pt. 591) pg 437

I have no doubt in my mind that the FIAT granted by the Attorney-General to Afe Babalola SAN & Co covers appearance in this case at the appellate stage as the authority to prosecute originated from the powers conferred on the Attorney-General by virtue of section 174(1) of the Constitution of the Federal Republic of Nigeria, and therefore not limited or specific in scope as in the case of Emeakayi v. C.O.P (2004) 4 NWLR (Pt. 862) Pg 158 cited by the 2nd and 3rd respondents.

I hold that there is a valid appeal before the court while this objection is struck out.

My attention has been drawn to the briefs of parties in this appeal and the issues for determination raised for determination in an appeal must flow from or be predicated on the grounds of appeal filed by the appellant. A respondent who has not cross-appealed or filed a respondent’s notice cannot frame issues outside the grounds of appeal filed by the appellant.

Idika v. Erisi (1988) 2 NWLR (Pt. 78) pg 563

Atanda v. Ajuni (1989) 3 NWLR (Pt. 111) pg 511

Eze v. Fed. Republic of Nigeria (1987) 1 NWLR (Pt.51) pg 506

Ogundare v. Ogunlowo (1997) 6 NWLR (Pt. 509) pg 360

Animashaun v. U.C.H. (1996) 10 NWLR (Pt.476) pg 65

An appellate court will discountenance any arguments in the brief where the issues formulated have no relevance whatsoever to the appeal and which does not arise from the grounds of appeal filed by the appellant.

F.B.N. Ltd. v. Owie (1997) 1 NWLR (Pt. 484) pg 744

Mercantile Bank of Nigeria Plc v. Linus Nwobodo (2000) 3 NWLR (Pt. 648) pg 297

As appellate courts abhor proliferation of issues, courts would merge any repeated issues for determination into a single issue where they relate to the same ground of appeal.

Ali v. C.B.N. (1997) 4 NWLR (Pt. 498) pg 192

Ajagungbade III v. Laniyi (1999) 13 NWLR (Pt. 633) page 92

This court shall adopt the issues adumbrated in the appellants brief for the purpose of this appeal, as they cover the issues raised by the other respondents.

Issue No. One

Whether or not there are enough ingredients of the offences contained in counts 1 and 2 proved by the prosecution to warrant the accused persons to answer those counts as contained in the charge.

It is the submission of the appellant that there is evidence or printed record which discloses a prima facie case against the accused persons in respect of count 1 and 2 of the charge. The offence specified there was committed in the Federal Capital Territory Abuja and that the accused persons actually recruited the six man gang that attempted to assassinate PW1 in her house in Abuja. The possibility of some of the accused persons being part of the six man gang cannot be ruled out. The 2nd P.W Okwudiri Udechukwu said that the 2nd accused made an effort to engage his service in killing the woman Director General of NAFDAC in her house in Abuja, as an attempt they had made earlier had failed. The 2nd accused gave the price for the job as N5 million Naira. PW1 Dr. Dora Akunyili gave an account of how armed robbers came to her house in Abuja between 8 p.m. and 10 p.m. on the 19th of August. 2001, but she was then away to Lagos on official duty.

The 2nd and 3rd accused had also engaged the services of the students of University of Technology Enugu to assassinate her, PW 13 Emmanuel Ogwumba testified that six armed men came to invade the Abuja residence of Dr. Akunyili. One of the armed men asked him to deliver the message to PW1 that she should stop disturbing drug sellers. The witness concluded that they must have been sent by drug sellers in Onitsha, and that 2nd and 3rd accused must be involved as their drugs were seized. PW17 Christian Ojobor of the State Security Service gave evidence of the secret meeting held at the 1st accused person’s office in Onitsha where the issue of killing PW1 was discussed. 2nd, 4th and 5th accused persons were at the meeting and the 5th accused was one of those to be used. The proposed assailants were to be paid N4 Million Naira. The 2nd accused was fully engaged in securing proposed assailants to exterminate PW1 DG NAFDAC and he participated in all the meetings.

The appellant drew attention of the court to the submission of no case to answer of the accused.

The significance of a no case to answer is the limited scope that the court can go in dealing and deciding on the evidence of the prosecution at this stage of the trial. The court is not required to go into the credibility of witnesses produced by the prosecution or question whether or not the evidence is believed. All that the law required and permitted the learned trial Judge to do at that stage in the proceedings was to see if a prima facie case had been made out. The correct procedure is for the court to write a brief ruling and make no observation as to the facts. The appellant submitted that on the evidence of PW1, 3 and 12, the accused persons have a case to answer. As there are enough ingredients of the offences of conspiracy and attempted murder in counts 1 and 2 of the charge.

This conclusion of the learned trial Judge was made without any basis in law. The appellant cited cases:

State v. Emedo (2001) 12 NWLR (Pt. 726) pg 131 at pages 148 – 152

Ajidagha v. I.G.P (1958) SCNLR 60 pg 62

Bello v. State (1967) NMLR pg 1

Emedo v. State (2002) 15 NWLR (Pt. 789) pg 196 at pg 204

Ogucha v. Queen (1959) SCNLR 154

Iheziako v. C.O.P (1963) 1 SCNLR 99

Ekanem v. The King (1950) 13 WACA 108 at pg 1129

Daboh v. The State (1977) 5 SC 197

Adeyemi v. The State (1991) 6 NWLR (Pt. 195) pg 1 at pg 35

Onagoruwa v. The State (1993) 7 NWLR (Pt.303) pg 49

Uhamatu v. C.O.P. (1999) 7 NWLR (Pt. 611) pg 512

Ekpo v The State (2001) 7 NWLR (Pt. 712) pg 292

The 1st respondent submitted that the prosecution called 19 witnesses and tendered 58 exhibits.

The prosecution did not lead any evidence to establish prima facie case, against the 1st accused in respect of counts 1 and 2 of the charge. The evidence available against him given by the 1st PW was mere suspicion. PW 12 stated in his evidence that when an attempt was made on the life of PW1 in 2001, he suspected the 2nd and 3rd accused as being responsible for the attack. PW16 Mr. Lawrence Alobi, the Commissioner of Police for the Federal Capital Territory at the time stated in his evidence that nobody’s name was mentioned as being responsible for the attack of PW1, he would have arrested the person. The 1st accused would have no evidence to proof his innocence if called upon. The prosecution has failed to establish any ingredients of the offences charged in counts 1 and 2. The learned trial Judge had rightly discharged the accused persons on the no case submission made by them.

The 1st respondent relied on the case of Abacha v. State (2002) FWLR (Pt. 118) page 1237; (2002) 5 NWLR (Pt.761) 638, Emedo v. State (2002) FWLR (Pt. 130) at 164, (2002) 5 NWLR (Pt. 789) 196.

The 2nd and 3rd respondents submitted that the appellant failed woefully to establish any prima facie case against the 2nd and 3rdrespondents in counts 1 and 2 due to paucity of evidence, contradictions and inconsistencies in the evidence of the appellant’s witnesses. On this contention, the 2nd and 3rd respondents relied on the evidence of four witnesses PW1, PW3, PW12 and PW 16. The 58 exhibits tendered were substantially in proof of counts 3 and 4.

The evidence of PW1 disclosed that she was not around when the six armed men came to her house. The people in her house reported the incident to her and none of them said that they saw either the 2nd and 3rd respondent in the house. The witnesses gave different dates for the occurrence of the attack. The evidence of PW1 besides being riddled with contradictions and inconsistencies is based on hearsay which is inadmissible in evidence to establish an offence. The evidence of PW12 is also based on mere suspicion when he concluded that whoever sent these people must be from Onitsha as the major activities of NAFDAC when PW1 assumed office was in Onitsha. PW12 claimed that he mentioned the names of the 2nd and 3rd accused to PW 16, the Commissioner of Police, Federal Capital Territory who refuted same as he would have ordered their arrest immediately. PW 3 who claimed to have been engaged by the 2nd respondent to kill PW1 in Abuja had his evidence discredited. He claimed to be having telephone conversations with the 2nd accused on his GSM number to discuss the payment of money to him. Both the appellant’s counsel and the respondents got an order of court against MTN to produce the manifest of calls made on GSM phone number 08033210430 from 1st September 2003 to 31 December 2003, and from 1st January, 2005 to 31st December, 2005 and even MTN produced the manifest for the one year the manifest was admitted as exh 18A. It revealed that number of PW3 was not on the manifest and that he did not even call the 2nd accused during the alleged period.

The respondents gave consideration to what amounts to a prima facie case in a no case submission and supported same with cases

Ajidagba v. I.G.P (1958) 3 FSC 5; (1958) SCNLR 60

Duru v. NWOSU (1989) 4 NWLR (Pt. 113) pg 24

Chianugo v. State (2002) 2 NWLR (Pt. 750) Pg 225 at page 237-238

Okoro v. State (1988) 5 NWLR (Pt. 94) 255 at Pg 277 -278

Ajisogun v. State (1998) 13 NWLR (Pt. 581) pg 236 at 257

Oluka v. State (No.2) (1988) 4 NWLR (Pt. 86) pg 36 at pages 53 – 54

Emedo v. State (2002) 15 NWLR (Pt. 789) pg 196

Adeyemi v. State (1991) 6 NWLR (Pt. 195) pg 1

The 2nd and 3rd respondents further submitted that telling them to defend a case on such porous and discredited evidence before the court will tantamount to call them to prove their innocence against section 36(5) of the Constitution. The case against 2nd and 3rd respondents was based on mere suspicion which however grave cannot ground a criminal conviction.

The respondents cited cases:-

Onagoruwa v. State (1993) 7 NWLR (Pt.303) 49 at page 96

Ugbaka v. State (1991) 8 NWLR (Pt.364) Pg. 568 at Pg. 574

Ahmed v. State (2001) 18 NWLR (Pt.746) Pg. 622 at Pg. 650

Etimuonu v. A.G. Delta State (1995) 6 NWLR (Pt.404) Page 719 at pg. 730

Yekini v. Nigerian Army (2002) 11 NWLR (Pt.777) Pg. 127

If no prima facie case is made out against the 2nd and 3rd respondents in counts 1 and 2 and the appeal against them is dismissed, the High Court of the Federal Capital Territory Abuja lacks jurisdiction to entertain counts 3 and 4 which will be devoid of any foundation to warrant the High Court of the Federal Capital Territory, Abuja, as against the High Court of Anambra State where the cause of action arose to entertain same. The court is urged to dismiss the appeal.

The 7th respondent submitted that it would amount to persecution and an abuse of the courts process for any person who is linked in any manner with the commission of an offence to be charged to court and put through the rigorous trial. There is no shred of evidence to link the 7th respondent with the offences stated in all the counts. Only the evidence of the 4th and 17th prosecution witnesses out of the 19 witnesses touched the 7th respondent.

The evidence of the 4th PW only identified him as the bodyguard of the 1st respondent and also PW17 the investigating police officer. The 7th respondent was not at anytime identified as one of those involved in the attack on the DG NAFDAC, neither did he confess to the commission of the alleged crimes. The 7th respondent was arrested for two reasons firstly for distracting and disturbing the SSS in the course of their investigation and secondly for being a personal guard of the 1st respondent. The charge on the 1st count is conspiracy.

Where a charge of conspiracy is tried along with the substantive charges, the prosecution has the primary duty to lead evidence of the existence of the conspiracy and what part the conspirators played. Each accused person is entitled at the onset to have the evidence properly admissible against him considered alone and it is only when after such evidence so considered he is found to be a party to the conspiracy, if any, that the acts of the other conspirators can be used against him. The evidence of PW17 did not show that the 7th respondent as present at the meeting where the killing of DG NAFDAC was discussed or that he performed his duty as security guards on those clays. There was no evidence to link the 7th respondent with the commission of the offences in 2001 and 2003. The lower court was right to hold that there was no prima facie case against the 7th accused on counts 1 and 2.

Furthermore, there can be no evidence to link the 7th respondent with killing of and the death of the deceased in counts 3 and 4.

The respondent cited cases:

Ikomi v. State (1986) 3 NWLR (Pt. 28) pg 340

Ikemson v. The State (1989) 3 NWLR (Pt. 110) Pg 455

Aje v. State (2006) 8 NWLR (Pt. 982) Pg 345

Clark v. State (1986) 4 NWLR (Pt. 35) Pg 381

Gbadamosi v. The State (1991) 6 NWLR (Pt. 19()) pg 182

Nwosu v. The State (2004) 15 NWLR (Pt. 897) Pg 466 pg 487

Mumini v. State (1975) 1 All NLR (Pt. 1) pg 294

Onah v. State (1985) 3 NWLR (Pt. 12) pg 236 at pg 246

I intend to consider issues 4, 5 and 6 together as the three issues are not only interrelated, they affect the jurisdiction of the lower court to hear this suit.

Issue Number Four reads:

Whether or not by the principles of judicial hierarchy and stare decisis of the Nigerian Judicial System, it is permitted to prefer a decision of the Court of Appeal over that of the Supreme Court on a similar issue of fact or principle of law.

Issue Number Five

Whether or not from the facts and circumstances of this case the High Court of the Federal Capital Territory can assume jurisdiction to entertain this matter.

Issue Number Six

Whether or not the FIAT of the Honourable Attorney General and Minister of Justice dated 10th of September, 200)4, which authorized the law firm of Chief Afe Babalola (SAN) & Co to prosecute the accused persons in the High Court of Federal Capital Territory, Abuja under the Penal Code can be held to be a nullity under the circumstances of this case.”

The appellant submitted that in the case of Emoga v. The State (1997) 9 NWLR (Pt. 519) 25 at pg 38 the Supreme Court held that the trial court and the Court of Appeal were wrong not to have followed the decision of the Supreme Court on a similar issue.

In the judicial hierarchy a lower court is bound by the ratio decidendi of a higher court. A Judge is not a law maker and so he must apply the law in its present form. The Judges of the lower court have no discretion to depart from the decision of the higher court in the hierarch even when such decision is erroneous. A situation where a lower court chose to ignore or refuse to follow the decision of a higher court will lead to chaos rather than stability. At the trial court, the learned counsel relied on two cases to determine the venue of the offence. The learned counsel followed the case of Patrick Njovens v. State (1973) 5 S.C. 17 and Adeniji v. State (2001) 13 NWLR (Pt. 730) pg 375 at 392-393 to argue that mere entry of the accused to the jurisdiction of the court where they were eventually arraigned conferred jurisdiction on the court.

Whether or not the crime was committed within such jurisdiction. The appellant relied on the provision of section 4(2)(b) of the Penal Code of the High Court of the Federal Capital Territory Abuja. In the case of Patrick Njovens v. State the Supreme Court held that section 4(2)(b) of the Penal Code law which deals with cases in which the initial element occurs outside the State requires that the person who does the act or omission should afterwards enter the State before being triable or punishable under the Penal Code.

The Supreme Court in interpreting a similar provision in the Criminal Code of Lagos State in the case of Adeniyi v. State (2001) 13 NWLR (Pt. 730) pg 392-393 held that even if the offence was committed outside Lagos State and afterwards the appellant comes into Lagos State, that entry of the appellant into Lagos State confers jurisdiction on the Lagos High Court to try him for the offences.

The same interpretation would go for Federal Capital Territory Abuja in the instant case.

The learned counsel to the 2nd and 3rd respondents relied on the case of Waziri v. State (1997) 3 NWLR (Pt. 496) pg 689 at pg 716, a Court of Appeal decision to contend that because no element of the offences were shown to have taken place in the Federal Capital Territory, Abuja, the High Court in Abuja cannot assume jurisdiction over the matter. Reference was made to the case of Ngige v. Achukwu (2005) 2 NWLR (Pt. 909) Pg 123 at pg 147. The lower court relied on the case of Waziri v. State, a Court of Appeal decisions similar in facts to the Supreme Court decisions in the case of Njovens v. State and Adeniji v. State. The Court of Appeal decision in Waziri v. State cannot override or be preferred to the two Supreme Court decisions on the issue of entry of an accused within the jurisdiction of the trial court.

The difference between those cases and the case in hand, has to be essential in other to establish that the previous decisions being relied upon are in applicable to the Instant case. The appellant held to the opinion that regardless of the decisions of court in the cases cited the lower court has Jurisdiction to try the case for the following reasons:

(a) In criminal matters, it is the charge before the court and not the evidence adduced by the prosecution witnesses that determine the jurisdiction of court to entertain the matter. Mattaradona v. Ahu (1995) 8 NWLR (Pt.412) Pg 225 at pg 235 paras. D – E; Al Mustapha v. State (2001) 8 NWLR (Pt. 715) pg 414 at 422

(b) Counts one and two on the charge sheet were allegedly committed within the Federal Capital Territory, Abuja

(c) There exists a nexus between counts 1 and 2 committed within the Federal Capital Territory, Abuja and counts 3 and 4 of the charge committed in Agulu, Anambra State.

(d) By virtue of section 221(d) of the Criminal Procedure Code persons may be charged and tried together who were accused of different offences committed in the course of same transaction.

(e) According to the proof of evidence of PW1 and PW

12, offences in counts 1 and 2 were committed in the FCT Abuja. There are elements of the offences of conspiracy and attempted murder in counts 1 and 2 committed within the FCT Abuja.

All the appellants entered the jurisdiction of the Federal Capital Territory according to the evidence of PW 17 – the investigation Police Officer, on the invitation of law enforcement agents – the SSS and remained in Abuja till they were charged to court. It would be wrong to hold that the judicial precedents on the entry into the territorial jurisdiction of the trial court as laid down in the cases of Njovens and Adeniyi did not apply to this case.

The appellant submitted that all the offences in counts 1, 2, 3 and 4 were committed in the course of the same transaction so any of the states where the offences were committed or where elements of the offences occurred has jurisdiction to entertain the suit. Offences in counts 1 and 2 are continuing manifestation of the acts in counts 3 and 4. The court in Abuja has jurisdiction to try the offences by virtue of section 134 of the Criminal Procedure Code sub-paragraphs (a)(b)(c). PW 3 said that the 2nd respondent admitted that they tried to attack PW1 in Abuja but the attempt failed. The case of Alabi v. C.O.P. (1971) NNLR 104 was referred to and similar provision in the Criminal Procedure Act, and the case of Lawson v. The State (1975) 4 SC 115 pg.121. Section 136 of the Criminal Procedure Code and High Court Rules gave jurisdiction to try a case in the place where the defendant resides. In the circumstance where two states have jurisdiction to try the same offence, a trial in one State would operate as a bar to a second trial in another State. The Attorney-General has in this case chosen an option to try the case herein Abuja and not Anambra State.

The appellant submitted further that the FIAT of the Attorney-General and Minister for Justice dated 10th of September, 2004 authorizing the law firm of Chief Afe Babalola, SAN & Co to prosecute the accused persons in the High Court of Federal Capital Territory Abuja under the Penal Code is valid and properly issued considering the acts and circumstance of this case. The appellant made reference to section 299 and 301 of the Constitution and that the Attorney General of the Federation is also an Attorney General of a State with respect to matter within the Federal Capital Territory.

Offences in counts 3 and 4 which took place in Anambra State are continuing manifestation of acts in counts 1 and 2 which took place within the Federal Capital territory Abuja. All the four counts are offences committed in the course of the same transaction which was to assassinate PW1 Dr. (Mrs.) Dora Akunyili. By the combined effect of section 4(2)(b) of the Penal Code, Cap 532, Laws of the Federation of Nigeria, Abuja, 1990 and section 134(a), (b), (c) and (d) of the Criminal Procedure Code, Cap. 491, Laws of the Federation of Nigeria, Abuja 1990, the Attorney-General, Federation can issue the FIAT to prosecute the accused persons. This court is urged to set aside the ruling of the lower court and order the accused persons to open their defence and order the learned trial Judge to conclude trial of this case.

This court is also urged to hold that the decision of the learned trial Judge of the 8th of February, 2005, to defer the hearing of the objection of the 2nd and 3rd accused persons challenging the jurisdiction of the lower court till the prosecution had closed its case as wrongful and has occasioned a grave injustice to the prosecution. The appellant cited the cases:

Kraus Thomspson Organization Ltd. v. University of Calabar (2004) 9 NWLR (Pt.879) Pg. 631 at 659.

Ayisa v. Akanji (1995) 7 NWLR (Pt. 406) pg 129 at 43144

Okoro v. A.-G. West (1965) 1 All NLR 283

The 1st respondent submitted that before Attorney General of the Federation or Slate can issue a FIAT or institute a criminal proceeding against any person, the basic factor to he determined is whether the offence is a State or Federal offence. The vital question to ask is whether the offences created by counts 3 and 4 of the charge are federal offences so as to qualify the Attorney General of the Federation to issue a FIAT. The offences in counts 3 and 4 of the charge are State offences having occurred in Agulu, Anambra State and it is only the Attorney-General of Anambra State who is competent to issue a FIAT or institute criminal proceedings against the 1st respondent and not the Attorney-General of the Federation. The 1st respondent submitted that no section of the Penal Code provides for offences against the laws of a region. It defines the criminal liability of a person in respect of any act or omission which is an offence under any law of Northern Nigeria and the provisions are applicable to every person who is in Northern Nigeria at the time of his doing the act or making the omission. The effect of section 4(2) of the Penal Code is to make liable every person who is within the Federal Capital Territory at the time of his doing an act which is an offence under the Penal Code. What is essential is the initial element of the offence and not the entry of the accused into the Federal Capital Territory as being canvassed by the appellant.

The offence as charged in counts 3 and 4 was committed in Agulu, Anambra State. There is no element of the offence that was committed in the Federal Capital Territory. The only court that has jurisdiction to try the offence is Anambra State High Court and in that respect, it is only the office of the Attorney General of Anambra State that can commence any criminal proceedings against the 1st accused/respondent on counts 3 and 4. Subsection 2 makes the offender liable under this law, when the offender has committed in the Federal Capital Territory the act which makes up the initial element of the offence. The 1st respondent cannot be tried by the High Court of the Federal Capital territory when the alleged offence was wholly committed in Anambra State.

The 2nd and 3rd respondents replied in respect of these issues which cover issues two and three in their brier. The respondent submitted that the High Court of the Federal Capital Territory has no jurisdiction to try counts 3 and 4 of the charge as the offences there are committed and consummated in Agulu Anambra State – all the evidence required to establish the offence relate to events which occurred within the state only. The law governing the crimes is the Criminal Code of Anambra State. The Penal Code under which the 2nd and 3rd respondents were charged docs not apply in Anambra Stat. The offences can only be prosecuted by the Attorney-General of Anambra State who has been empowered by section 211(1) of the Constitution of the Federal Republic of Nigeria. 1999. The 2nd and 3rd respondents can only be arraigned in respect or counts 3 and 4 by the Attorney-General of Anambra State or by an y person to whom he issues FIAT.

The decision of the learned trial Judge on the issue or venue of the offence is unassailable.

The alleged attempt on the life of DG NAFDAC PW1 in Abuja in 2001 and the alleged attempt on the 26th of December, 2003 at Agulu in Anambra State are distinct offences. All evidence of witnesses centred on the incident of 2003 and not 2001. The facts of the case in Patrick Njovens v. The State differ from the instant case. Counts 1 and 2 cannot be the initial element of counts 3 and 4 and to so hold is a misconception. Section 4(2) of the Penal Code cannot be relied upon by the High Court of the Federal Capital Territory on the basis of mere entry of the offenders if no part of the elements of the offence occurred in the Federal Capital territory. The respondents cited authorities to show that the FCT High Court has no jurisdiction over counts 3 and 4 pursuant to section 134 of the Criminal Procedure Act.

Sunday Okoro v. A-C. Western Nigeria (1965) 1 All NLR pg 283

Lawrence Magaji v. C.O.P (1971) NNLR pg 13

Muritala Alabi v. C.O.P (1971) NNLR 104

The respondents argued further that counts 1 and 2 were introduced as camouflage or mere ruse to confer jurisdiction on the F.C.T High Court, Abuja. Convenience of the prosecution does not determine the jurisdiction of court against limitations prescribed in the statutes which set up the courts themselves.

As regards the FIAT of the Attorney General the respondents refer to section 174(1)(a) or the 1999 Constitution. Though the Penal Code is applicable to the Federal Capital Territory as deemed enacted by the National Assembly but the Penal Code is not applicable to Anambra State. The offences in counts 3 and 4 were committed and consummated at Agulu in Anambra State. the Attorney-General, Federation has neither the Constitutional nor statutory authority prosecute directly and indirectly and offence or offences committed against the law of Anambra State. The power of the Attorney-General to issue FIAT must be Construed within the four walls of section 174(1) of the 1999 Constitution which is limited to offences created by or under any Act of the National Assembly. The offences can only be prosecuted by the Attorney-General, Anambra State who has been empowered by section 211(1) of the Constitution.

The 7th respondent enjoins this court to step into this matter and determine the issues in controversy between the parties. It will amount to injustice if this court orders retrial of the 7th respondent under any circumstance whether in Abuja or Anambra State. This court has a duty to ensure that court processes are not abused.

The fundamental principle of the administration of criminal justice is well settled in that an accused is presumed innocent until he is prove guilty. The onus is on the prosecution to prove the guilt of an accused person beyond reasonable doubt. The 7th respondent cited the case of Egboghonome v. State (1993) 7 NWLR (Pt. 306) page 383 at page 428.

I find it convenient at this stage to consider the submission of the appellant, and the 1st, 2nd, 3rd and 7th respondents on the important issues raised in the briefs as follows:

(a) Whether or not from the facts and circumstances of this case the High Court of the Federal Capital Territory can assume jurisdiction to entertain this matter.

(b) Whether or not there arc enough ingredients of the offences contained in counts 1 and 2 proved by the prosecution to warrant the accused persons to answer those counts as contained in the charge.

I regard the foregoing as the two major issues in this appeal and they embrace all the other issues raised by the appellant.

Issue (a) is whether or not from the facts and circumstances of this case the High Court of the Federal Capital Territory can assume jurisdiction to entertain this matter.

The seven respondents were arraigned before the High Court of the Federal Capital Territory for offences as follows:

Count 1

That between October 2001 to December 2003 at different places in the Federal Capital Territory and Anambra State agreed to cause the death of Dr. (Mrs.) Dora Akunyili. Director General NAFDAC, and the said act was attempted to be done in pursuance of an agreement and thereby committed an offence punishable under section 97 or the Penal Code.

Count 2

“That on a day in the month of October, 2001 at about 7pm at DG NAFDAC’s residence on Freetown Crescent, Wuse II Abuja did act to wit, caused unknown gun men to invade the residence of Dr. (Mrs.) Dora Akunyili, Director-General, National Agency for Food and Drugs Administration and Control (DG NAFDAC) and forcibly entered the rooms in the House in search of the said Dora Akunyili for the purposes of firing gun shots at her with such intention and or knowledge and under such circumstances that if by that act you had caused the death of the said Dora AkunyiIi you would have been guilty of culpable homicide punishable with death and that you thereby committed an offence punishable under section 229 of the Penal Code. Count 3

“That on the 26th day of December, 2003 at Agulu in Anambra State did an act to wit, caused gunshots to be fired at Dr. (Mrs.) Dora Akunyili Director-General National Agency for Food and Drugs Administration and Control (DG NAFDAC) while driving inside her Peugeot 406 Saloon Official car with such intention or knowledge and under such circumstances that if by that act you had caused the death of Dr. (Mrs.) Dora AkunyiIi DG NAFDAC you would have been guilty of culpable homicide punishable with death and that you thereby committed an offence punishable under section 229 of the Penal Code.

Count 4

‘That on the 26th day of December, 2003 at Agulu in Anambra State did commit culpable homicide punishable with death in that you caused the death of one Emeka Onuekutu by doing act to wit caused several gun shots to be fired at Dr.(Mrs.) Dora Akunyili DG NAFDAC while driving inside her Peugeot 406 Saloon Official car with gun shot missed their target but instead hit the deceased inside his Mitsubishi L 300 Minibus with Reg. No. AE763 AJL with the intention of causing the death of and or with the knowledge that the death of the said Emeka Onuekutu would be the probable consequence of your act thereby committed an offence punishable under section 221 of the Penal Code.”

Though these offences were committed on various dates and at different places in October 2001 at the DG NAFDAC residence Abuja, and in December, 2003 in Agulu, Anambra State they were all charged under the Penal Code and arraigned before the Federal Capital Territory High Court Abuja.

The big poser is whether the Federal Capital Territory High Court can assume jurisdiction to try these offences which venue was partly in Abuja and party in Anambra State under the Penal Code.

The clear picture in this case is that the Penal Code does not apply in Anambra State as it is not an existing law of that State whereas the offences in counts 3 and 4 were committed and consummated in Anambra State and can only be prosecuted at the instance of the Attorney General Anambra State who has been empowered under section 211(1) of the 1999 Constitution of the Federal Republic of Nigeria. It is an undisputed fact that the High Court of the Federal Capital Territory has no jurisdiction over criminal offences committed in Agulu, Anambra State.

The appellant however, argued that by virtue of section 4(2)(b) of the Penal Code the High Court of the Federal Capital Territory Abuja has the jurisdiction to try this case and supported this contention with the cases of Patrick Njovens v. The State (1973) 1 NMLR pg 331 at pg 345 and Adeniji v. State (2001) 13 NWLR (Pt. 730) pg 375 at 392 – 393.

Section 4(2)(a) & (b) of the Penal Code Act provides as follows:

“Where any such offence comprises several elements and any acts, omissions or events occur which, if they all occurred in the Federal Capital Territory, Abuja would constitute an offence, and any of such acts, omissions or events occur in the Federal Capital Territory, Abuja, although the other acts, omissions or events which if they occurred in the Federal Capital Territory, Abuja would be elements of the offence, occur else where than in the Federal Capital Territory, Abuja, then –

(a)……

(b) If that act or omission occurs elsewhere than in the Federal Capital Territory, Abuja, and the person who does that act or makes that omission afterwards enters the Federal Capital Territory Abuja, he is by such entry guilty of an offence of the same kind, and is liable to the same punishment, as if the act or omission had occurred in the Federal Capital Territory. Abuja and he had been in the Federal Capital Territory, Abuja, when it occurred.”

The appellant argued that section 4(2)(h) should be applicable to the instant case and knowing fully well that initial elements or the offences in counts 1, 2 and 3 occurred in FCT Abuja and that all the four counts in the charge were offences committed in the course of the same transaction which was to assassinate the PW1. The appellant submitted that the FCT Abuja High Court is the better of the two coul1s that have jurisdiction where this case can be heard in the interest of justice and considering the special circumstance of this case and the notoriety of the accused persons within and around Anambra State.

In the case of Patrick Njovens v. State and Adeniji v. State, it was held that mere entry of the accused to the jurisdiction of the court where they were eventually arraigned conferred jurisdiction on the court whether or not the crime was committed within such jurisdiction. In these cases, it was specified that how an accused entered into jurisdiction is immaterial even the entry may not have been voluntary.

Where a person is alleged to have committed an offence, if the initial elements of the alleged offence occurred in one state and the subsequent elements occurred elsewhere, the State where the initial elements of the offence occurred can try the offender, as if the subsequent elements also occurred within that State. This was even stretched further by the Supreme Court in the case of Njovens v. The State (supra) relied upon by the appellant. In that if the offender afterwards enters the State where the subsequent elements occurred, he is by such entry triable in that State.

The facts of the case in Njovens v. The State are that the appellants were charged and convicted by the Kwara State High Court with the offences of abatement and dishonestly receiving stolen property under the Penal Code. The appellants knew of a plan to rob a bank in Bacita, Kwara State. The robbery was planned in Ibadan. The robbery took place as planned in Kwara State and the money stolen was divided amongst the appellants and the robbers. On appeal against the conviction, it was argued that the trial court erred in trying the appellants in Kwara State under the provisions of the Penal Code. The appellate court held that the appellants were properly tried in Kwara State. It stated that the offence of abatement although the initial clement of the offence took place in Ibadan, the subsequent elements of the offence took place in Bacita, Kwara State. Since the appellants were arrested and brought to Kwara State they had entered Kwara State.

Therefore they were properly tried in Kwara State. Counsel argued that the entry of the appellants into Kwara State was involuntary as they were arrested and brought to Kwara State therefore they did not enter the State as to confer jurisdiction on the court in Kwara State.

It was submitted that enters in section 4(2)(b) of the Penal Code should be construed as voluntary entry. The court rejected this submission and held that entry could be voluntary or involuntary. what is essential is that the offender is within the State.

This same reasoning was adopted in the case of Adeniji v. State while interpreting a similar provision in the Criminal Code of Lagos State. It boiled down to the fact that even if the offence was committed outside Lagos State and afterwards the appellant comes into Lagos State the entry into Lagos State confers jurisdiction on the Lagos State High Court to try him of the offence. The appellant was strongly of the view that offences in counts 1 and 2, and those in counts 3 and 4 were committed in the course of the same transaction. The respondents nurtured the same purpose in all the offences which is the ultimate elimination of Professor Dora Akunyili – the Director-General, NAFDAC. The appellant canvassed five other reasons why the High Court of the Federal Capital Territory can entertain the charge as follows-

(a) In criminal matters, it is the charge before the court that determines the jurisdiction of the court to entertain the matter

(b) Counts 1 and 2 on the charge sheet were allegedly to have been committed within the Federal Capital Territory, Abuja

(c) There exists a nexus between counts 1 and 2 committed within the Federal Capital Territory, Abuja and counts 3 and 4 of the charge committed in Agulu, Anambra State

(d) By virtue of section 221(d) of the Criminal Procedure Code persons may be charged and tried together who were accused of different offences committed in the course of the same transaction. The transaction here was the mission to kill PW1.

(c) Counts 1 and 2 were committed within FCT Abuja. There are Clements of the offences of conspiracy and attempted murder in counts 1 and .2 committed within FCT Abuja.

The offences in counts 1 and .2 of the charge and offences in counts 3 and 4 are all committed in the course of pursuance of the same purpose. Any of the states where any of all the offences on the charge sheet was committed or elements of the offences occurred, had jurisdiction to entertain this suit pursuant to sections 134 – 139 of the Criminal Procedure Code Act, Cap 491, Laws of the Federation of Nigeria, 1990.

By virtue of section 301 of the Constitution, Attorney-General of the Federation is also the Attorney-General of a State with respect to matters within the Federal Capital Territory. Since the four counts on the charge are offences committed in the course of the same transaction and in pursuance of same purpose which is to assassinate PW1. With the community reading of section 4(2)(b) of the Penal Code Cap 532 Laws of the Federation 1990, section 134(a), (b), (c) and (d) of the Criminal Procedure Act, Cap 491 Laws of the Federation, 1990, and section 301 of the L 999 Constitution, the Honourable Attorney-General can validly issue the FIAT dated 10th of September, 2004 to the law firm of Chief Afe Babalola, SAN & Co to prosecute the respondents here at the Federal Capital Territory, Abuja.

I also hold that the FCT High Court Abuja can assume jurisdiction over this matter.

In the case of Usan v. State (1978) 6-7 SC 165 the Supreme Court held that the following factors must be considered before a court assumes jurisdiction in a criminal trial-

(i) That ends of justice would better be served by hearing the charge against the accused in that particular court seeking to assume jurisdiction.

(ii) That the accused was apprehended or in custody within the judicial division of the court seeking to assume jurisdiction.

(iii) Accessibility and convenience of the witnesses.

In recent times, the courts have leaned in favour of moving cases out of their usual and regular venue or jurisdiction particularly in political cases based on security reports on the safety of complainants, prosecutors and witnesses particularly where parties in opposition enjoy strong physical and financial influence which can affect investigation and disrupt vital evidence. This case is not by any means an exception to bringing prosecution of a case out of local venue in the interest of justice.

On this note, I advocate that there must be a new dawn in our criminal trials. The court must emerge from the woods and avoid any situation where criminal justice shall become a casualty of procedural technicality.

In criminal trials, the Attorney-General as a prosecutor must be in a position to hold the brief of innocent citizens of the Sovereign State of Nigeria without any technical loopholes or barriers. Surely our criminal process requires over hauling there must be a uniform Nigeria criminal process and not the present dichotomy of Penal Code for the North and Criminal Code for the South. Crime knows no local or global barriers.

In the order of hierarchy of courts in the Nigerian Judicial System and under the 1999 Constitution the Supreme Court is the Apex Court followed by the Court of Appeal. In applying the principle or doctrine of judicial precedent or stare decisis, all authorities of the Supreme Court take precedent over and above those of Court of Appeal and they have more binding force over similar issues. The lower court in the judicial hierarchy is bound by the ratio decidendi of a higher and superior court. The doctrine does not allow for any judicial discretion on the part of a Judge of the lower court.

Cardoso v. Daniel (1986) 2 NWLR (Pt. 20) pg 1

Federal Govt. of Nigeria v. Oshiomhole (2004) 3 NWLR (Pt.860) pg 305

Concord Press Nig. Ltd. v. Olutola (1999) 9 NWLR (Pt. 620) pg 578

Comptroller of Nigerian Prisons v. Adekanye (1999) 10 NWLR (Pt. 623) pg 400

Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) pg 241

Ojukwu v. Obasanjo (2004) 12 NWLR (Pt. 886) pg 169

I agree with the submission of counsel that the question of jurisdiction is the cornerstone of all litigations. That is the essence of the importance of jurisdiction as it is a threshold issue and the lifeline of trials. A trial without jurisdiction is a nullity. That is the reason why it can be raised at any stage of a case both at the trial and on appeal. Therefore, its being raised at proceedings can neither be too early or premature nor too late. Any failure by the court to determine any preliminary objection or challenge to its jurisdiction is a fundamental breach which renders any further step taken in theproceedings a nullity.

Madukolu v. Nkemdilim (1962) 2 SCN LR 341

Petrojessica Enterprises Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt.244) Pg. 675.

Olalekan v. Wema Bank Plc. (2000) 13 NWLR (Pt. 683) pg 57

Oloriode v. Ovevi (1984) 1 SCNLR 390

N.D.I.C. v. C.B.N. (2002) 7 NWLR (Pt. 766) pg 272

The issue of jurisdiction in a court to hear a case can arise in different forms. If it arises in a case in which it is necessary to call several witnesses it may be necessary first to dispose of it in order to avoid waste of judicial time. Whichever way the issue of jurisdiction presents itself, the important thing to bear in mind is that the court should first consider and make a decision on its jurisdiction before considering the merit of the case. In this case trial had commenced before the objection was properly filed, hearing of the challenge to its jurisdiction has become an issue of prudent management of judicial time in which a particular learned trial Judge hearing the case has a discretion. I cannot pinpoint how the exercise of discretion has by any standard occasion a miscarriage of justice in the trial.

Continental Trust Bank Ltd. v. Balogun (2007) FWLR (Pt. 162) Pg 1908

Another crucial aspect of this appeal is whether the proof and evidence on record shown by the prosecution disclose a prima facie case against the accused persons in respect of counts 1 and 2 of the charge.

The submission of the appellant is that some elements of the offence in count 1 and the commission of the offence in count 2 took place in the Federal Capital Territory, Abuja. The respondent recruited the six man gang that attempted to assassinate PW 1 in her house in Abuja. The possibility of the accused persons being part of the six man gang cannot be ruled out.

The 1st, 2nd, 3rd, and 7th respondents argued and submitted that there are no direct legally admissible evidence to connect them with the commission of the offences in counts 1 and 2 of the charge. The 2nd and3rd respondents put the evidence against them as based on mere suspicion. The appellant conceded that there were only evidence from the PW1 Prof Dora Akunyili, PW3, PW12 and PW 16 out of the nineteen witnesses and all the 58 exhibits tendered were all essentially in proof of counts 3 and 4.

The evidence of PW1 are on pages 525 – 539 of the record of appeal. In the evidence, she testified that she was not at home when six armed men came to her house. She travelled to Lagos from the office for an emergency. She relied on what information she heard from PW12 about the incident. The bulk of her evidence is therefore inadmissible hearsay on which this court cannot act.

The PW3 gave the impression in his evidence that the 2nd respondent engaged his service to kill PW1 as they had tried to do the job without success and the 2nd respondent gave the information that she is based in Abuja. The impression given was that he transacted this business on GSM phone with the 2nd respondent. Both the appellants 2nd and 3rd respondents counsel obtained court order against MTN to produce manifest of all calls made and received on the 2nd respondent’s GSM phone between the 1st of September to 31st of December, 2003 and for one year as from 1st January 2003 to 31st December, 2003 This was admitted in evidence as exh. 18A (vide page 544 of the record of appeal). The coul1 discovered that PW 3’s number was not on the manifest indicating that he did not call the 2nd respondent at all. His entire evidence against the 2nd respondent was instantly discredited. The only evidence he gave about the 3rd respondent was that he met him in Onitsha prison.

The 7th accused had no evidence incriminating him. He was only arrested because he was a personal security guard to the 1st respondent and he was arrested in the process of protecting his master from any personal assault when officers of the State Security Service apprehended him.

PW12 was the officer in the residence of PW1 when armed men came to ask for PW1. He reported the incident to PW1. The armed men left a message at the house that PW1 should leave Onitsha drug sellers alone. PW 2 concluded that whoever must have sent these people must have been from Onitsha because when PW1 assumed office, the major activities of the Agency that she undertook was in Onitsha. He suspected the 2nd and 3rd respondents and reported the incident to Commissioner of Police Lawrence Alobi PW16 in the Force Headquarters. PW 16 said that information about the incident was reported to him at home and no names of suspected persons were mentioned then, else he would have directed that an investigation be conducted and arrests made. The incident was not recorded in any crime diary. The evidence of PW 12 in respect of 2nd and 3rd respondents was based on mere suspicion or speculation. The counsel to the respondents raised a submission that they have no case to answer, which the lower court rightly upheld.

A submission of no case can be raised and upheld at that stage of trial:

(a) When there has been no evidence to prove an essential element in the alleged offence.

(b) When the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.

When a submission of no case is made on behalf of an accused person, the trial court is not thereby called upon at that stage to express any opinion on the evidence before it. The court is only called upon to take note and to rule accordingly that there is before the court no legally admissible evidence linking the accused person with the commission of the offence with which he is charged. If the submission is based on discredited evidence such discredit must be apparent on the face of the record. If such is not the case then the submission must fail.

Ibeziako v. C.O.P. (1963) 1 SCNLR P9 99

Emedo v. The State (2002) 15 NWLR (Pt. 789) P9 19

Daboh v. The State (1988) 5 NWLR (Pt. 94) P9 255

Ubanatu v. C.O.P. (1977) 5 SC 197

Ajidagba v. I.G.P. (1958) SCNLR Pg 60

Onagoruwa v. State (1993) 7 NWLR (Pt. 303) Pg. 49.

It is however noteworthy that at the stage of no case submission the trial of the case is not yet concluded hence a court should not be concerned with the credibility of the witnesses or the weight to be attached to the evidence, the case should not remark deeply about the evidence or make observation on the points before it.

Ajiboye v. The State (1995) 8 NWLR (Pt. 414) Pg. 408

R v. Ajani (1936) 3 WACA 3.

Bello v. State (1967) NMLR 1

At the stage in which parties made a no case submission at the lower court, in respect of counts 1 and 2, there was no evidence to establish the essential elements of the offence, charged therein. Furthermore, the evidence to link particularly the 2nd and 3rd accused persons with the offences as adduced by PW1 was legally inadmissible hearsay, evidence of PW 3 was discredited in the course of the trial. He did not categorically identify the 2nd and 3rd respondents as taking part in the incident of 2001. Evidence of PW12 was not only speculative but amount to mere suspicion as the 2nd and 3rd respondents belong to the group of drug sellers in Onitsha. While PW 17 a Commissioner of Police said that no names of suspected persons were passed down to him, else he would have directed investigation into the matter and apprehended the culprits.

In the case of Ahmed v. State (2001) 18 NWLR (Pt. 746) at pg 622 at pg 650 the Supreme Court held:

“Our criminal Justice system loses its essential requirement of proof by evidence beyond reasonable doubt if persons accused of crime are convicted on mere suspicion or on mere speculation, however intelligent that may be, notwithstanding the inadequacy of evidence. Whatever the reason for the inadequacy of evidence or absence of essential evidence may be is immaterial to the duty of the court not to convict an accused of an offence not proved by evidence.”

In the surrounding circumstance of this appeal based on evidence on record, I support the decision of the lower court discharging the respondents on a submission that no prima facie case was made against them on counts 1 and 2 as the proper option. As a discharge following no case submission under section 286 of the Criminal Procedure Act is tantamount to an acquittal. The 1st – 7th accused persons are discharged and acquitted of the offences on counts 1 and 2 on the charge.

It is trite law that all issues raised for determination in an appeal must flow from or arise from the appellant’s grounds of appeal challenging the decision of the lower court.

No party or court is allowed to formulate any issue which is not related to the grounds of appeal. Issue one in the 2nd and 3rd respondents’ brief not arising from the appellant’s grounds of appeal is hereby discountenanced for being incompetent and consequently struck out.

Oniah v. Onyia (1989) 1 NWLR (Pt. 99) pg 514

NIPOST v. Udeaja (1990) 1 NWLR (Pt. 125) pg 188

Mark v. Eke (2004) 5 NWLR (Pt. 865) pg 54

Obasanjo v. Yusuf (2004) 9 NWLR (Pt. 877) pg 144

In the final analysis this appeal succeeds in part. It is the decision of this court that the High Court of Federal Capital Territory Abuja Coram Ishaq Bello. J has jurisdiction to continue to entertain counts 3 and 4 on the charge and complete the case on its merits.

Hearing in the criminal trial shall accordingly continue in respect of counts 3 and 4 on the charge.

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Other Citations: (2007)LCN/2467(CA)