CHIEF LERE ADEBAYO V. THE STATE
(2012)LCN/5572(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of July, 2012
CA/I/232C/2010
RATIO
JURISDICTION: TYPES OF JURISDICTION
In the textbook, Criminal Procedure in Nigeria, Law and Practice by Oluwatoyin Doherty at pages 159 – 167, the learned author explained the distinction between various types of jurisdiction: extra territorial jurisdiction, territorial jurisdiction and local jurisdiction. The relevant considerations for the purposes of this judgment are territorial and local jurisdiction. With regard to territorial jurisdiction, the learned author had this to say at page 160:
“Nigerian courts can try any person, citizen or alien who is alleged to have committed an offence in Nigeria. The power to try an accused person for an offence committed within the country is divided between component parts of the country. Thus, one or more States within a country may possess jurisdiction to try an accused person. The provisions governing territorial jurisdiction in Nigeria are to be found in ss. 12 and 12A of the CCs (Criminal Codes), s. 4 of the Penal Code (Northern States) Federal Provisions Act 1960.”
With regard to local jurisdiction, the learned author stated at page 163 that where an offence is committed within the boundaries of a State, it is necessary to determine which court within the State is competent to try the offender. She explained that as High Courts within a State fall within a judicial division while Magistrates courts fall within a magisterial district, a person alleged to have committed an offence would be arraigned before a court in the judicial division or magisterial district where the alleged offence was committed. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
CRIMINAL LAW: WHETHER IT IS WITHIN THE POWERS OF THE ATTORNEY GENERAL TO CHARGE SOME OFFENDERS OR NOT
It is within the discretionary powers of the Attorney General to charge some offenders and declines to charge others. See Abacha v. The State (2002) 11NWLR (779) 437 @ 499 D. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
WORDS AND PHRASES: MEANING OF PRIMA FACIE
In the case of Abacha V. The State (supra) at 486 E – F, the Supreme Court adopted the definition of “prima facie” as proffered in an Indian case of Singh V. Jitend-dranthen (1931) 1 LR 59 Calc. 274 and quoted with approval in Ajidagba V. Inspector-General of Police (1958) SCNLR 60 thus:
“What is meant by prima facie (case)? It only means that there is ground for proceeding … But a prima facie case is not the same as proof which comes later when the court has to find whether the accused is guilty or not guilty … and “the evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused.” PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
CRIMINAL LAW: FACTORS CONSIDERED IN DETERMINING WHETHER A PRIMA FACIE CASE HAS BEEN MADE AGAINST AN ACCUSED
It was held in Abacha’s case (supra) at 496 – 497 G – D that in order to determine whether a prima facie case has been made out against an accused to warrant his being put on trial, the entire proofs of evidence i.e. statements from relevant persons and perhaps also the suspect must be read and considered. In that case it was held that there was nothing in the proofs of evidence that linked the appellant to the crimes on the indictment other than suspicion. It was on this ground that the appeal was upheld and the information was quashed.
In the case of Ikomi V. The State (1986) 1 NSCC 730 @ 742 – 743, Nnamani, JSC held thus:
“Once there are circumstances from which it an be justly inferred that an accused person could have committed the offence, he should be put on his trial. Whether there are other co-existing circumstances, which would weaken the inference or whether the evidence leads irresistibly to accused person’s guilt can only be determined at the trial.” (Emphasis mine) PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JUSTICES:
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A.A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
CHIEF LERE ADEBAYO – Appellant(s)
AND
THE STATE – Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment): The appellant herein, Chief Lere Adebayo and two others were public servants in the service of the Osun State Government. Between 1999 and 2003 the appellant was the Commissioner for Finance in the State. Architect Lanre Oladeji was a consultant while Engineer Sola Akinwunmi was the Secretary to the State Government. They were saddled with the responsibility of supervising and managing the Osun State New Governor’s Office (Bola Ige House) Project. Funds towards the execution of the project were released to the consultant. The appellant and Engineer Akinwunmi were alleged to have colluded with Architect Lanre Oladeji to steal the sum of N126, 467,725.85, property of Osun State Government meant for the project, among other offences.
An 8-count information was consequently filed against them on 13/2/04 before the High Court of Osun State sitting at Osogbo. The charges are as follows:
COUNT 1:
1. ARC. LANRE OLADEJI “M”
2. CHIEF LERE ADEBAYO “M”
3. ENGR. SOLA AKINWUMI “M”
at various times between 30th August, 2001 and 2nd May, 2003 at Osogbo in the Osogbo Judicial Division conspired to commit a felony to wit; stealing and thereby committed an offence, contrary to and punishable under S.516(A) of the Criminal Code, Cap, 30 Vol. II, Laws of Osun State of Nigeria, 2003.
COUNT II:
1. ARC. LANRE OLADEJI “M”
2. CHIEF LERE ADEBAYO “M”
3. ENGR. SOULA AKINWUMI “M”
On or about same date, time and place in the aforesaid Judicial Division stole the sum of N126, 467,725.85k (one hundred and twenty-six million, four hundred and sixty-seven thousand, seven hundred and twenty-five Naira, eighty-five Kobo) property of the Osun State Government (OSSG) and thereby committed an offence, contrary to and punishable under Section 390(5) of the Criminal Code, Vol. II Cap. 34 Laws of Osun State of Nigeria, 2003.
COUNT III:
1. CHIEF LERE ADEBAYO “M”
2. ENGR. SOLA AKINWUMI “M”
On or about the same date, time and place in the aforesaid Judicial Division by means of fraudulent device or trick induced one Lanre Oladeji ‘M’ to obtain the sum of N126, 467,725.85k (one hundred and twenty-six million, four hundred and sixty-seven thousand, seven hundred and twenty-five Naira, eighty-five Kobo) property of the Osun State Government (OSSG) and thereby committed an offence, contrary to and punishable under section 421 of the Criminal Code, Cap. 34, Vol. II, Laws of Osun State of Nigeria, 2003.
COUNT IV:
1 CHIEF LERE ADEBAYO “M”
2. ENGR. SOU AKINWUMI “M”
On or about the same date, time and place in the aforesaid Judicial Division under the colour of your employment in the Osun State Government corruptly received from ARC. Lanre Oladeji ‘M’ the sum of N85m (eighty five million Naira) on account of the illegal release of the sum of N126, 467,725.85k (one hundred and twenty-six million, four hundred and sixty-seven thousand, seven hundred and twenty-five Naira, eighty-five Kobo) property of the Osun State Government and thereby committed an offence, contrary to and punishable under S.98 (1) of the Criminal Code, Cap, 34, Vol. II, Laws of Osun State of Nigeria, 2003.
COUNT V:
1. ARC. LANRE OLADEJIÂ Â “M”
2. CHIEF LERE ADEBAYO “M”
3. ENGR. SOLA AKINWUMI “M”
On or about the same data, time and place in the aforesaid Judicial Division received by means of a felony to wit; stealing the sum of N126, 467, 725.85k property of the Osun State Government and thereby committed an offence, contrary to and punishable under S.427 of the Criminal Code, Cap. 34, Vol. II, Laws of Osun State of Nigeria, 2003.
COUNT VI:
1. CHIEF LERE ADEBAYO “M”
2. ENGR. SOLA AKINWUMI “M”
On or about the same date, time and place in the aforesaid mentioned Judicial Division being agents of Osun State Government (OSSG) corruptly obtained the sum of N85m (eighty-five million Naira) from Arc. Lanre Oladeji as consideration for showing favour in the illegal release of the sum of N126, 467, 725.85k from the Funds of Osun State Government and thereby committed an offence contrary to and punishable under Section 494 (1) (a) of the CC Cap. 34 II Laws of Osun State, 2003.
COUNT VII:
1. CHIEF LERE ADEBAYO ‘M’
On or about 27th August, 2002, demanded and obtained from ARC. LANRE OLADEJI ‘M’ the sum of N10m (ten million Naira) property of Osun State Government and thereby committed an offence, contrary to and punishable Under S. 404 (1) (a) of the Criminal Code, Vol. II Cap. 34, Laws of Osun State of Nigeria, 2003.
COUNT VIII:
1. ARC. LANRE OLADEJI ‘M’
2. CHIEF LERE ADEBAYO ‘M’
3. ENGR. SOLA AKINWUMI ‘M’
On or about and between 30th August, 2001, in the Osogbo Judicial Division fraudulently received the sum of N126, 467, 725.85k property of Osun State Government (OSSG) and thereby committed an offence contrary to and punishable under Section 427 of the Criminal Code 34, Volume II, Laws of Osun State of Nigeria, 2003.
Each of the accused persons pleaded Not Guilty to each count. By a motion on notice dated 15th February 2005, the appellant herein, Chief Lere Adebayo (2nd accused) and Engineer Sola Akinwunmi (3rd accused) sought to quash/dismiss all the charges against them. The respondent opposed the application by filing a counter affidavit thereto. After listening the to submissions of learned counsel, the learned trial Judge, Bada, J (as he then was), dismissed the application in a considered ruling delivered on 25/4/05.
Being dissatisfied with the decision, the appellant filed a notice of appeal dated 13/7/2010 containing 3 grounds of appeal. It was filed pursuant to an order of this court dated 6/7/2010 granting an extension of 14 days within which appeal against the decision. The grounds of appeal shorn of their particulars are as follows:
1. The learned trial Judge erred in law when he held that he has jurisdiction to try the accused person, the offence being alleged having been committed in Ibadan, Oyo State, outside the jurisdiction of the Honourable Court, presided over by the learned trial Judge.
2. The learned trial Judge erred in law when he held that he has jurisdiction to try the accused person even when the accused person is being prosecuted contrary to the provisions of Section 211 of the 1999 Constitution and Section 342 of the Criminal Procedure Law of Osun State.
3. The learned trial Judge erred in law when he held that the proof of evidence attached to the information filed was cogent and valid enough to sustain the offences of conspiracy, stealing, receiving and obtaining.
At the hearing of the appeal on 24/4/2012, PRINCE I.A. MIKAHEEL leading TOLA ONIBONOJE ESQ., for the appellant adopted and relied on the appellant’s brief dated 12/10/2011 and filed on 14/10/2011. He urged the court to allow the appeal and quash the charges before the lower court. N.N. ADEGBOYE ESQ. adopted and relied on the respondent’s brief dated 21/1/2012 and filed on 23/1/2012. It was deemed properly filed and served on 2/2/2012. He urged the court to dismiss the appeal.
From the grounds of appeal the appellant distilled the following issues for determination:
1. Whether the learned trial Judge was right in law to hold that he has jurisdiction to try the appellant in Osogbo, Osun State of Nigeria, when it has been established that the alleged offence was committed in Ibadan, Oyo State of Nigeria, clearly outside the jurisdiction of the learned trial Judge.
2. Whether the learned trial Judge was right in law to hold that the appellant can be tried upon information, which is in flagrant violation of S. 211 of the 1999 Constitution of the Federal Republic of Nigeria, and S.342 of the Criminal Procedure Law of Osun State of Nigeria.
3. Whether the trial Judge was right in law to have held that the proof of evidence attached to the information filed was cogent and valid enough to sustain the offences of conspiracy, stealing, receiving and obtaining by fraud.
The respondent also formulated three issues. They are almost identical with the appellant’s issues. There is no need to reproduce them. I shall determine the appeal on the issues formulated by the appellant.
Issue 1
Whether the learned trial Judge was right in law to hold that he has jurisdiction to try the appellant in Osogbo, Osun State of Nigeria, when it has been established that the alleged offence was committed in Ibadan, Oyo State of Nigeria, clearly outside the jurisdiction of the learned trial Judge.
In support of this issue, learned counsel for the appellant submitted that the sum of N126, 467, 725.85 subject of counts 2, 3, 4, 5 and 8 of the information was part of N190 million being the total cost of the contract awarded to Tropics Consult Ltd. by the Osun State Government in respect of the Bola Ige House project. He noted that Architect Lanre Oladeji is the president of the company. He stated further that the total sum of money paid into the National Bank, Ibadan branch account of Tropics Consult Ltd. by the accounts department of the Governor’s office, less deductions was N171 million. He contended that the contract sum was paid into the company’s account in Ibadan and not Osogbo and that from the proof of evidence at pages 3 – 4 of the record it was clear that the transaction on the account took place in Ibadan outside the jurisdiction of the High Court of Osogbo. For this reason he submitted that the High Court of Osogbo lacked jurisdiction to entertain the charges. He referred to Sections 64 (a), (b) and (c) of the Criminal Procedure Law of Osun State. He also cited a plethora of authorities on the fundamental nature of jurisdiction including: Ebhodaghe V. Okoye (2004) 18 NWLR (905) 472 @ 500 C; Ugwuanyi V. NICON Insurance Plc. (2004) 15 NWLR (897) 612 @ 634 F – G; Madukolu V. Nkemdilim (1962) 2 ALL NLR 581 @ 583.
Learned counsel further contended that as the transaction that gave rise to the charge was between the Osun State Government and Tropics Consult Ltd., which is a limited liability company, the company ought to have been charged along with the accused persons and that failure to bring the proper party before the court robbed the court of jurisdiction to entertain the information. He referred to Adisa V. Oyinwola (2000) 10 NWLR (674) 116 @ 180 B; Okon V. Bob (2004) 1 NWLR (854) 318 @ 396 D.
In reply to the above submissions, learned counsel for the respondent submitted that where there is a dispute as to which State High Court has jurisdiction in a matter, the issue would be determined by reference to the cause of action, the Constitution of the Federal Republic of Nigeria and other laws conferring jurisdiction. He referred to: N.B.C. V. Nwaneri (2000) 14 NWLR (686) 30 @ 39. He submitted that the relevant processes to be examined to determine the cause of action are the information and proof of evidence and not the averments in the affidavit in support of the appellant’s application before the trial court. He referred to: U.B.N. V. Umeoduagu (2004) ALL FWLR 1552 @ 1561; (2004) 13 NWLR (890) 352.
In the course of his submissions, learned counsel made several allusions to the fact that the proof of evidence was not compiled as part of the record of appeal. This assertion is not borne out by the record before us. This appeal was transferred to the Akure Division of the Court of Appeal from the Ibadan Division. On 30/7/2010 the Court of Appeal, Ibadan received the record of appeal that is now before the court. It is not properly compiled, as many of the pages are mixed up. Be that as it may, the record contains the proof of evidence at pages 4 – 28 thereof.
Learned counsel referred to an extract of the ruling appealed against wherein the learned trial Judge reproduced part of the summary of the evidence of some of the proposed witnesses and the appellant herein derived from the proofs of evidence, and submitted that that delivery of the money, an element of the offence, took place in Osogbo, Osun State. He submitted that by virtue of section 12 (A) (2) of the Criminal Code Law of Osun State the High Court of the State has the requisite territorial jurisdiction to adjudicate over the charge against the accused persons, including the appellant. He submitted that the act of fraudulently converting sums of money meant for the project by the accused persons took place at Osogbo where the conspiracy was perfected and the money delivered. Relying on the case of Patrick Njovens V. The State (1973) ALL NLR 371, he submitted that the fact that a single element of the offences for which the appellant was charged occurred in Osun State is sufficient to confer jurisdiction on the Osun State High Court.
He submitted that presence of the appellant within Osun State when other elements of the offence were carried out elsewhere is also sufficient to confer jurisdiction on the court. He contended that there is nothing in Section 64 (a), (b) and (c) that robs the Court of jurisdiction. He referred to sub-paragraph (d) of the section, not alluded to by learned counsel for the appellant, and submitted that it is a complete answer to the issue. He submitted that if several elements of an offence are committed in different divisions or districts, a court having jurisdiction in any of the divisions or districts can entertain the matter. He noted that Section 12 (A) (b) of the CPL confers jurisdiction on the State High Court in instances where the accused was apprehended within the State even if the initial element of the offence took place in another State. He referred to Njovens V. The State (supra). He submitted that in the plethora of cases on jurisdiction relied upon by learned counsel for the appellant, including: Ebhodage vs. Mike Okoye (supra); Ugwuanyi V. Nicon Insurance Plc (supra), the issue of the territorial jurisdiction of the court did not arise, Furthermore the cases were not decided on the principles of criminal law.
On the issue of failure to join proper parties, learned counsel submitted that the Attorney-General reserves the right to decide who to charge to Court and for what offence and that the failure to charge a co-suspect to Court would not rob the court of jurisdiction to try the accused. He submitted that the concept of non-joinder is inapplicable in criminal cases. He urged the court to resolve this issue against the appellant.
I have given careful consideration to the submissions of both learned counsel. The appellant herein was charged with conspiracy, stealing, fraudulent inducement, receiving, and obtaining the various sums of money alleged in the information. The offences are alleged to have been committed at Osogbo, in the Osogbo Judicial Division of Osun State. It is the appellant’s contention that the offences were committed in Ibadan, Oyo State outside the jurisdiction of the Osun State High Court.
As correctly submitted by learned counsel for the respondent, in determining this issue, or any other issue arising from a challenge to the information filed against the appellant, the processes to be considered are the proofs of evidence filed along with the information. Any information supplied by way of affidavit evidence would not be relevant. This is because the essence of an application to quash charges in an information is that the information is inherently defective for one reason or the other or that the proofs of evidence do not establish a prima facie case against the appellant sufficient to warrant his being called upon to provide some explanation.
Some of the facts that could be gathered from the proofs of evidence are that the project for which money was disbursed was the construction of the new Governor’s Office in Osogbo, Osun State. Lanre Oladeji (the 1st accused) was the architect who designed the building and was the consultant for the project. A Bill I account was created for the project by the office of the Accountant General. According to A.F. Olatoye (1st PW) at page 6 of the record:
”the Accounts Division of the Bureau of General Services was directed to prepare vouchers in the name of Tropics Consult i.e. Arc. Oladeji…. Thereafter, all fund released for Bill I account was paid and collected by Tropics Consult i.e., Arc. Oladeji.”
The 2nd PW, Kayode Fashola stated that Arc. Oladeji operated an account with the Ibadan branch of National Bank of Nig. Ltd.
He stated at page 9 of the record:
“I could remember a period where our customer at Ibadan, Arc. Lanre Oladeji gave instruction to the branch to help release fund to Chief Lere Adebayo. We noted that cheque no. 419 which was drawn by Arc. Lanre Oladeji of Tropic Consult Ltd. dated 27 August 2002 for a sum of N10, 000, 000.00 was brought to the bank by the drawer. He requested for higher denomination which we did not have at that particular point in time. As soon as we got the higher denominations of N500 notes, I (Kayode Fasola) on behalf of the Bank, took the money to Chief Lere Adebayo at his residence at GRA Osogbo.”
At page 14 of the record, the 1st accused, Lanre Oladeji stated:
“The N85, 000, 000.00 was paid in a number of instalments. A lot of the money was collected in bits and polled until the amount required was gathered. This was to avoid raising eye brows and suspicions. When the money was ready, it was moved to Osogbo and the SSG would be alerted. When the money came and it was bulk, i.e. when it was more than N10, 000, 000.00, the SSG would ask me to take it to the Commissioner. He would later confirm to me that the Commissioner said he had “seen me”. Three times I did this – N25, 000, 000,00, N20, 000, 000.00 and N20, 000, 000.00 and four times the SSG himself collected N5, 000, 000.00, N5, 000, 000.00, N5, 000, 000,00 and N5, 000, 000.00.”
At page 17, Arc. Lanre Oladeji stated:
“I would issue cheques to the Bank and authorise the Bank to move the money to their Osogbo branch. Via my instructions the Manager delivered such moneys to Chief Lere Adebayo.”
As noted by the learned trial Judge in his ruling, the appellant denied the allegations.
However for the purpose of determining this issue, what is clear from the proofs of evidence is that some elements of the various offences charged took place in Osogbo. The appellant has raised the issue of the territorial jurisdiction of the Osun State High Court to try him. Reliance was placed on Section 64 (a), (b) and (c) of the Criminal Procedure Law Vol. II Cap 35, Laws of Osun State of Nigeria 2003, which provide as follows:
S.64 (a) “an offence shall be tried or inquired into by a court having jurisdiction in the division or district where the offence was committed,”
(b) when a person is accused of the commission of any offence by reason of anything which has been done, or of anything which has been omitted to be done, and of any consequence which has ensued, such offence may be tried or inquired into by court having jurisdiction in the division of district in which any such thing has been done or omitted to be done, or any such consequence has ensured.”
(c) when an act is an offence by reason of its relation to any other act which is also an offence, a charge of the first mentioned offence may be tried or inquired into by a court having jurisdiction in the division or district either in which it happened, or in which the offence, with which it was so connected happened.”
In the textbook, Criminal Procedure in Nigeria, Law and Practice by Oluwatoyin Doherty at pages 159 – 167, the learned author explained the distinction between various types of jurisdiction: extra territorial jurisdiction, territorial jurisdiction and local jurisdiction. The relevant considerations for the purposes of this judgment are territorial and local jurisdiction. With regard to territorial jurisdiction, the learned author had this to say at page 160:
“Nigerian courts can try any person, citizen or alien who is alleged to have committed an offence in Nigeria. The power to try an accused person for an offence committed within the country is divided between component parts of the country. Thus, one or more States within a country may possess jurisdiction to try an accused person. The provisions governing territorial jurisdiction in Nigeria are to be found in ss. 12 and 12A of the CCs (Criminal Codes), s. 4 of the Penal Code (Northern States) Federal Provisions Act 1960.”
With regard to local jurisdiction, the learned author stated at page 163 that where an offence is committed within the boundaries of a State, it is necessary to determine which court within the State is competent to try the offender. She explained that as High Courts within a State fall within a judicial division while Magistrates courts fall within a magisterial district, a person alleged to have committed an offence would be arraigned before a court in the judicial division or magisterial district where the alleged offence was committed.
The appellant’s contention is that the offences alleged against him were committed in Ibadan, Oyo State. The extracts from the proofs of evidence referred to above show that some elements of the offence took place in Osogbo, Osun State. An examination of Section 64 (a), (b) and (c) of the CPL reproduced above shows that the section relates to local jurisdiction, as defined earlier i.e. where there is a dispute as to which judicial division or magisterial district within a particular State has jurisdiction to try an offence. I am therefore in agreement with learned counsel for the respondent that the applicable law is Section 12A (2) of the Criminal Code Law of Osun State, Vol. II Cap. 34, which provides:
12A (2) “With regard to any such offence which is of such a nature that it comprises several elements, if any acts or omissions or events actually occur, which if they all occurred in Osun State, would constitute an offence, and any of such acts or omissions or events which occur in Osun State, although all or some of the other acts or omissions or events which, if they occurred in Osun State would be elements of the offence, occur elsewhere than in Osun state then:
a) If the act or omission which in the case of an offence committed wholly in Osun State would be the initial element of the offence, occurs in Osun State, the person who does that act or makes that omission is guilty of an offence of the same kind and is liable to the same punishment as if all the subsequent elements of the offence had occurred in Osun State; and
b) If that act or mission occurs elsewhere than in Osun State and the person who does that act or makes that omission afterwards comes into Osun State, he is by such coming into the state guilty of an offence of the same kind and is liable to the same punishment, as if that act or omission had occurred in Osun State and he had been in Osun State when it occurred.”
In his brief of argument, learned counsel for the respondent submitted that from portions of the evidence extrapolated from the proofs of evidence referred to earlier, delivery of the money, which constitutes an element of the offence took place in Osogbo, Osun State. He submitted thus in paragraph 5.14 at page 9 of his brief:
“…it should be noted that the appellant was charged with diverse offences ranging from conspiracy, stealing, diversion of funds to fraudulent receipt of fund. The money involved belongs to Osun State, the project for which the money was meant is located in Osun State, the appellant was an official of Osun State Government, the conspiracy and diversion took place in Osun State and the fraudulent receipt took place in Osun State. … It therefore goes without saying that it is Osun State High Court that has jurisdiction to try the offence. ”
I agree with the view of learned counsel for the respondent. The appellant and the other accused persons were all officials of Osun State Government and the project was to be executed in Osun State. The release of the funds, according to the proofs of evidence took place in Osogbo. The conspiracy allegedly took place in Osogbo. The alleged receipt of money also took place in Osogbo. Thus the fact that the funds were initially paid into an account held with National Bank, Ibadan Branch in Oyo State would not rob the Osun State High Court of jurisdiction to try the offences. I agree with learned counsel for the respondent that the initial element of all the counts of the charge is conspiracy, which allegedly took place in Osogbo. Furthermore, pursuant to Section 12A (b) of the Criminal Code and on the authority of Njovens V. The State (supra), even if part of the offence was committed outside Osun State, while other elements occurred within Osun State and the accused persons subsequently entered Osun State whether voluntarily or not, they became triable by the High Court of Osun State. In the instant case the facts alleged are that the appellant received part of the alleged stolen and/or diverted funds in Osogbo.
I therefore hold that the High Court of Osun State, sitting at Osogbo has jurisdiction to try the offences with which the appellant is charged.
With regard to the contention of learned counsel for the appellant that the proper parties are not before the court, the submission demonstrates a misconception of criminal law and procedure.
In a criminal trial, the onus is on the prosecution to prove its case against the accused persons beyond reasonable doubt. It must prove its case against each accused person separately. Where it fails to do so, any doubt would be resolved in favour of the accused.
The issue of proper parties in a criminal trial therefore does not arise. It is not an issue that affects the jurisdiction of the court to try those actually brought before it.
It is within the discretionary powers of the Attorney General to charge some offenders and declines to charge others. See Abacha v. The State (2002) 11NWLR (779) 437 @ 499 D. One of the main actors in the commission of an offence could be considered to be of more benefit to the prosecution as a prosecution witness in order to secure the conviction of “bigger fish”. The cases of Adisa V. Oyinwola and Okon V. Bob (supra) relied upon by learned counsel for the appellant were civil actions and not relevant to the prosecution of a criminal charge. This issue is resolved against the appellant.
Issue 2
Whether the learned trial Judge was right in law to hold that the appellant can be tried upon information, which is in flagrant violation of S. 211 of the 1999 Constitution of the Federal Republic of Nigeria, and S.342 of the Criminal Procedure Law of Osun State of Nigeria.
The argument of learned counsel for the appellant under this issue is that the information before the court violates Section 211 of the 1999 Constitution and Sections 341, 342 and 343 of the Criminal Procedure Law of Osun State and is therefor incompetent, illegal, invalid and liable to be struck out. The grounds for this submission are that the case at the court below is being prosecuted by a private prosecutor and the conditions stipulated under the Constitution and the Criminal Procedure Law of Osun for private prosecution have not been complied with. He noted inter alia, that learned senior counsel, Yusuf Ali, SAN took over the prosecution of the case without a certificate from the Attorney-General of Osun State declining to prosecute and without entering into any recognisance. He referred to Ugwuanyi V. NICON Insurance Plc. (2004) 15 NWLR (897) 612 @ 633 G and submitted that upon a literal interpretation of the relevant provisions of the CPL the information should be quashed on the ground that it was not signed in accordance with the dictates of the law. He also relied on: Ezeze V. The State (2004) 14 NWLR (894) 491 @ 502 A – G. Fawehinmi V. A.G. Lagos State (No. 1) (1989) 3 NWLR (112) 707. On the interpretation of Section 211 of the 1999 Constitution he referred to: Abacha V. The State (supra). He contended that Mrs. A.A. Adewemimo who signed the information usurped the powers of the Attorney General of Osun State thereby rendering the information incompetent.
Learned counsel for the respondent in reaction to the above submissions submitted that the information is signed by Mrs. A.A. Adewemimo, a legal officer in the office of the Attorney General of the State is in accordance with Section 211 of the Constitution. On the authority of the Attorney General to delegate his powers, he referred to Attorney General Western Nigeria V. The African Press & Anor. (1965) ALL NLR (Reprint) 6 @ 10 where the Supreme Court considered the provisions of Section 47 of the 1963 Constitution, which is in pari materia with Section 211 of the 1999 Constitution. He also referred to: Adebotu V. State (1976) 4 SC 27 @ 50. He submitted that Sections 342 and 343 of the CPL are not applicable in the circumstances of this case because the Information upon which the charge was premised was preferred by the Attorney General of the State and not a private prosecutor. He submitted that the trial before the lower court was initiated by the Attorney General and was already in motion before the services of a private legal practitioner, Yusuf Ali, SAN were engaged to lead the team from the Ministry of Justice. He submitted that the learned Attorney General did not decline to prosecute and therefore the filing of an information by the learned silk and compliance with Sections 342 and 343 of the CPL would not arise. On the right of the Attorney General to brief private practitioners, he referred to the Supreme Court decision in: D.P.P. Vs Akozor (1962) ALL NLR (Reprint) 235 @ 240 where the provisions of Section 97 of the Nigeria (Constitution) Order in Council 1960 (which is in pari materia with Section 211 of the 1999 Constitution) were considered.
He submitted that the case of Ezeze V. State (supra) relied upon by learned counsel for the appellant is not applicable to the facts of this case because the information in this case was preferred in accordance with the law. He contended that the reference to Abacha V. State (supra) on this issue was made out of context.
In order to determine this issue it is necessary to consider the provisions of Section 211 of the 1999 Constitution, Sections 341, 342 and 343 of the CPL and the information contained at pages 1 – 3 of the record.
Section 211 of the Constitution provides:
211 (1) – the Attorney-General of a State shall have power:-
a. to institute and undertake criminal proceedings against any court of law in Nigeria other than a court-martial in respect of any offence created by or under any law of the House of Assembly;
b. to take over and continue any such criminal proceedings that might have been instituted by any other authority or person; and
c. to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
(2) The powers conferred upon the Attorney-General of a State under subsection (1) of this section may be exercised by him in person or through officers of his department.
(3) In exercising his powers under this section, the Attorney-General of a State shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.
Sections 341, 342 and 343 of the Criminal Procedure Law of Osun State provide:
341 (1) All information shall, subject to the provisions of subsection (2) and Section 342, be signed by a law officer.
(2) Where the Governor shall for reasons of public convenience think fit, an information may be signed by any other public officer or person whom the Governor may designate.
(Emphasis mine)
342. The registrar shall receive an information from a private person if –
a. It has endorsed thereon a certificate by a law officer to the effect that he has seen such information and declined to prosecute at the public instance the offence therein set forth; and
b. such private person has entered into a recognizance in the sum of fifty pounds, together with one surety to be approved by the registrar in the like sum, to prosecute the said information to conclusion at the times at which the accused shall be required to appear and to pay such costs as may be ordered by the court, or, in lieu of entering into such recognizance shall have deposited one hundred Naira in court to abide the same conditions.
343. Where any private person has complied with the provisions of Section 342 the information shall be signed by such person and not by a law officer or other person designated by the minister as aforesaid and such person shall be entitled to prosecute the information but nothing in this section shall be construed so as to exclude the provisions of Section 211 of the Constitution of the Federation, (Emphasis mine)
I have examined the information contained at pages 1 – 3 of the record. It was signed by Hon. Gbadegesin Adedeji, Hon. Attorney General and Commissioner for Justice, Osun State. The proof of evidence at pages 4 – 10 of the record was signed by Mrs. A.A. Adewemimo, Chief State Counsel for the Hon. Attorney General and Commissioner for Justice. There is nothing in the record before the Court to suggest that the Hon. Attorney General of the State declined to prosecute or that Yusuf Ali, SAN sought to prosecute the appellant and the other accused persons as a private prosecutor. By the provisions of Section 211 (2) of the 1999 Constitution reproduced above, the Attorney General of a State may exercise his powers in person or through officers of his department. As rightly observed by the learned trial Judge the information was signed by the Attorney General himself. From my examination of the record, the proof of evidence that accompanied the information was signed by Mrs. A.A. Adewemimo, Chief State Counsel (in other words “a law officer”) on behalf of the Attorney General of the State. It would not be correct to say, as contended on behalf of the appellant, that a Chief State Counsel in the Ministry of Justice has usurped the powers of the Attorney General where he/she signs a Court process on his behalf. There must be clear evidence that he/she was not so authorised.
There is a legal presumption that judicial and official acts have been rightly and regularly done until the contrary is proved. See Section 150 (1) of the Evidence Act. See also: Ogbuanyinya V. Okudo (1990) 7 SC (Pt. I) 66; Timothy V. F.R.N. (2008) ALL FWLR (402) 1136 @ 1151 – 1152 G – D. The argument of learned counsel for the appellant regarding the subsequent inclusion of the learned silk, Yusuf Ali, SAN to lead the team from the Ministry of Justice is merely a storm in a teacup. There is nothing in the record to suggest that Mr. Yusuf Ali, SAN is prosecuting the matter in his private capacity. Indeed at page 40 of the record during the proceedings of 22/2/05 he announced his appearance leading several senior members of the Bar including R.A. Siyanbola, D.P.P., Mrs. K.M. Akano, Asst. Director, and Mrs. A.A. Adewemimo, Chief State Counsel, all from the Ministry of Justice Osun State. This is a clear indication that it was not a private prosecution. It is my considered view that Sections 342 and 343 of the CPL are not applicable in the circumstances of this case. I hold that the information signed by the Attorney General and the proof of evidence signed by a Chief State Counsel in the Ministry of Justice, Osun State are competent. This issue is accordingly resolved against the appellant.
Issue 3
Whether the trial Judge was right in law to have held that the proof of evidence attached to the information filed was cogent and valid enough to sustain the offences of conspiracy, stealing, receiving and obtaining by fraud.
Learned counsel for the appellant submitted that there are no material ingredients to sustain a charge that would enable the appellant stand trial in any court of law. He submitted that there is nothing in the proof of evidence to suggest that the project for which the N126, 467, 725.85K was disbursed was not executed; or that any money due under the contract was not paid; or that indeed any money was missing. He submitted that the issue of conspiracy, stealing, receiving and obtaining under false pretences does not arise in the circumstances of this case. He referred to various excerpts from the proofs of evidence to support his contention that there are no facts establishing the offences alleged against the appellant. He also contended that there are contradictions in the evidence of the proposed witnesses as contained in the proofs of evidence. He referred to the evidence of PW2, Kayode Fashola, a manager with National Bank and the 1st accused, Arc. Lanre Oladeji. Relying on the case of Abacha V. The State (supra) at 485 C – D; 486 E – F, 496 G – H and 554 E, he submitted that the proofs of evidence before the court do not contain the ingredients of the offences with which the appellant is charged and he ought not to be made to stand trial where no prima facie case has been made out against him. He submitted that the information filed against the appellant amounts to an abuse of the court process and a violation of his fundamental rights. He referred to: Ogoejofo V. Ogoejofo (2002) 12 NWLR (780) 171 @ 186 A; Odejide V. R.T.G.I.M. (2004) 38 WRN 61 @ 70 line 15. Relying on the case of: Anyaduba V. N.R.T. Co. Ltd. (1990) NWLR (127) 397 @ 408 A, he submitted that where the court finds that the charges amount to an abuse of court process the information should be struck out.
In reply learned counsel for the respondent submitted that at the stage of seeking to quash information, it is the existence of a prima facie case and not the guilt of the accused person that determines whether leave would be granted to quash the information. He referred to Abacha V. The State (supra). He submitted that from the proof of evidence there is sufficient evidence to link the appellant with the commission of the crime. He referred to the extracts from the proof of evidence reproduced by the learned trial Judge in his ruling. In paragraph 7.08 at page 18 of his brief he enumerated the following facts that emerge from the proof of evidence:
(a) “Funds meant for the execution of the Bola Ige House project was (sic) under the custody and management of the 1st accused/appellant and the 3rd accused person.
(b) The accused/appellant and the 3rd accused person used their offices to divert the funds contrary to the terms of the project and in a manner punishable under Section 390 (5) of the Criminal Code Law, Osun State.
(c) The accused/appellant and the 3rd accused person being public officers under the colour of their appointment demanded and received money from the 1st accused person contrary to the terms of Bola Ige House project in a manner punishable under section 404 (1) (a) of the Criminal Code Law.
(d) The accused/appellant and 3rd accused person by means of fraudulent trick obtained from the 1st accused person money meant for the execution of Bola Ige House contrary to the project terms and in a manner punishable under Section 421 of the Criminal Code Law, Osun State.
(e) The accused/appellant and the 3rd accused person received money meant for Bola Ige House project from the 1st accused person illegally when they knew as a fact that the money belonged to the project contrary to Section 427 of the Criminal Procedure Law Osun State.
(f) The accused/appellant and 3rd accused person corruptly accepted money from the 1st accused person while the 1st accused person corruptly gave the money to the accused/appellant and the 3rd accused person for the purpose of inducing them to mislead Osun State Government contrary to Section 494 of the Criminal Code Law.”
Learned counsel submitted that the statement of the 1st accused, which is essentially corroborated by the statement of PW1 and PW2 in the proof of evidence disclose that offences have been committed and the appellant herein in collusion with the other accused persons are sufficiently linked with the commission of the offences. He submitted that this is all that is required for the State to proceed against the appellant. He referred to: Ikomi V. The State (1986) 1 NSCC 730 @ 742 – 746. He submitted that Abacha V. The State (supra) is distinguishable from the facts of this case and therefore inapplicable.
In the case of Abacha V. The State (supra) at 486 E – F, the Supreme Court adopted the definition of “prima facie” as proffered in an Indian case of Singh V. Jitend-dranthen (1931) 1 LR 59 Calc. 274 and quoted with approval in Ajidagba V. Inspector-General of Police (1958) SCNLR 60 thus:
“What is meant by prima facie (case)? It only means that there is ground for proceeding … But a prima facie case is not the same as proof which comes later when the court has to find whether the accused is guilty or not guilty … and “the evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused.”
It was held in Abacha’s case (supra) at 496 – 497 G – D that in order to determine whether a prima facie case has been made out against an accused to warrant his being put on trial, the entire proofs of evidence i.e. statements from relevant persons and perhaps also the suspect must be read and considered. In that case it was held that there was nothing in the proofs of evidence that linked the appellant to the crimes on the indictment other than suspicion. It was on this ground that the appeal was upheld and the information was quashed.
In the case of Ikomi V. The State (1986) 1 NSCC 730 @ 742 – 743, Nnamani, JSC held thus:
“Once there are circumstances from which it an be justly inferred that an accused person could have committed the offence, he should be put on his trial. Whether there are other co-existing circumstances, which would weaken the inference or whether the evidence leads irresistibly to accused person’s guilt can only be determined at the trial.” (Emphasis mine)
Earlier in this judgment, I reproduced some aspects of the statements of witnesses as contained in the proofs of evidence before the court below. The learned trial Judge in his ruling painstakingly examined the proofs of evidence before him and extracted therefrom aspects, which in his view link the appellant and his co-accused to the commission of the offences with which he is charged. I have reproduced below some of the statements in the proofs of evidence in slightly more detail than the learned trial Judge in order to put the facts in a clearer context.
PW1, A.F. Olatoye, former PS (GS) in the Governor’s office at Osogbo gave a background to the circumstances relating to the charges in the information. He stated thus at pages 4 – 6 of the record:
“The New Governor’s Office i.e. Bola Ige House was awarded to Messers L’ Dalberto (sic) in November 2001, of (sic) a sum of about N883, 000, 000.00. A team of consultant (sic) headed by Arc. Ogunniyi was assembled for the projects. They were the same consultants assembled for the New Secretariat Complex. The projects i.e. New Secretariat Complex and the New Governor’s Office were peculiar in the method and condition of award. Because condition of the award were hard and harsh (the contractors were not mobilised) and in an attempt to ensure that work did not stop on it because of lack of fund, a Bill I account was created for the New Secretariat Complex and its management was placed under the consultants. A Bill I account was also created for the New Governor’s Office and it was to be managed by the consultant, also i.e. Arc. Ogunniyi as coordinating … The account was well managed and the performance of Arc. Ogunniyi was impressive. The Bill I account for the New Governor’s Office was also to be in the same account but Arc. Oladeji who designed the Governor’s Office (a member of the team of consultants) saw it differently. His position was that he, as the consultant who designed the project should manage the Bill I account for the project. A feud ensued between him and Arc. Ogunniyi. This was solved at a meeting chaired by the former SSG where the former Hon. Commissioner for Finance was present. When an approval was given by H.E., the Governor for the first instalment, the Accounts Division of the Governor’s office had prepared the vouchers in the name of Archy Consult i.e. Arc. Ogunniyi. But the vouchers were not honoured as the Accountant-General’s office did not release cheque for the first instalment. At the meeting indicated above, the Hon. Commissioner for Finance gave reason for the development. According to him the project could not be regarded as a single project, hence the A.G.’s office decided to release cheque only to Arc. Oladeji of Tropics Consult. It was as a result of this that the decision was taken at the meeting to prepare the vouchers in the name of Tropics Consult i.e. Arc. Oladeji. This was how the New Governor’s office got its own Bill I account for award of contract. In Government there is a State Tenders Board, the SSG is the Chairman while the Hon. Commissioner for Finance is a member. The report of the Board on any contract is made to H.E., the Governor for approval. The process was followed in respect to the New Governor’s Office for both projects a single team of consultants was assembled but another letter issued to Arc, Oladeji to design the New Governor’s Office. It was this letter that the Accountant General’s Office held to take its position that one voucher for Bill I account on the project should be issued in the name of Tropics Consult… And on the strength of that letter it was accepted and the Accounts Division of the Bureau of General Services was directed to prepare vouchers in the name of Tropics Consult i.e. Arc. Oladeji…Thereafter all funds released for Bill I account was paid and collected by Tropics Consult i.e. Arc. Oladeji. On the whole, a sum of N190, 000, 000.00 was released into the account. Oladeji requested for more money and upward review of the contract sum. Series of meetings were held and the character (sic) of Arc. Oladeji was presented in a memo to the SSG after the meetings, his request for more money into Bill I account was not approved. There were deductions made by the Accounts Division of the Governor’s Office. … What happened to the fund released to Arc. Oladeji was between him and the SSG.”
(Underlined portions above and subsequent underlined portions below represent the extracts contained in the ruling of the lower court).
The former Commissioner for Finance referred to is the appellant herein.
PW2, Kayode Fashola in his statement spanning pages 6 – 10 of the record stated inter alia:
“I work with National Bank of Nigeria Ltd. I am presently the Regional Manager (West Central) and also the Branch Manager, Osogbo. I got to know Architect Lanre Oladeji sometime in the year 2001 when I was in our Ibadan Office as the Relationship Manager in Ibadan. He was one of those who opened account with our Ibadan Branch. He operated a business account named Tropics Consult. He did not have any bank account in Osogbo, but because National Bank operates a system called on-line real-time that allows him to operate his account in any of our stations or business offices. This on-line system allows him to cash cheques at any station or branch of the Bank…. I could remember a period where our customer at Ibadan, Arc. Lanre Oladeji gave instruction to the branch to help release fund to Chief Lere Adebayo. We noted that cheque no. 419 which was drawn by Arc. Lanre Oladeji of Tropics Consult Ltd. dated 27th August 2002 for a sum of N10, 000, 000.00 was brought to the bank by the drawer. He requested for higher denomination which we did not have at the particular point in time. As soon as we got the higher denominations of N500 notes, I (Kayode Fashola) on behalf of the Bank, took the money to Chief Lere Adebayo at his residence at GRA Osogbo. All the money were (sic) given to him. … Mr. Lanre Oladeji came to Osogbo branch to make banking transactions on his account…. He came with a cheque of his business company, Tropics Consult, to withdraw a sum of N10, 000, 000.00 (Ten Million).”
At page 12 of the record, Arc. Oladeji, the 1st accused stated thus in his statement to the Police:
“In the course of the works, the then Secretary to the State Government, Engr. Sola Akinwunmi called me and told me that I had to release part of the money that was in my care for a purpose and that the money so released would be returned to the Project later.
He later met me again with the Commissioner for Finance, Chief Lere Adebayo and this matter was again raised and discussed. All of the money so taken from the Project I was told would be returned in time for payments for the respective services. The total money so released to them amounted to N85, 000, 000.00 (eighty-five million naira). The money had not been returned until handing over eventually took place to the new Government of Prince Olagunsoye Oyinlola in May of 2003. … This project was completely and totally controlled by the SSG and I was absolutely responsible to him. He gave all the orders. We had no access whatsoever to the Governor on Project Matters.”
At page 14 of the record in another statement he stated:
“… The N85, 000, 000.00 was paid in a number of installments. A lot of the money was collected in bits and polled until the amount required was gathered. This was to avoid raising eye brows and suspicions. When the money was ready, it was moved to Osogbo and the SSG would be alerted. When the money came and it was bulk, i.e. when it was more than N10, 000, 000.00, the SSG would ask me to take it to the Commissioner. He would later confirm to me that the Commissioner said he had “seen me” Three times I did this – N25 000, 000.00, N20, 000, 000.00 and N20, 000, 000.00 and four times the SSG himself collected N5, 000, 000.00, N5 000 000.00, N5 000, 000.00 and N5, 000, 000.00.
Apart from the fact that the Governor did not deal directly with us, the SSG made it impossible to related (sic) with His Excellency even when it became obvious that this was the only way left to resolve certain issues.”
At page 17 of the record, he stated further:
“I would issue cheques to the Bank and authorise the Bank to move the money to their Osogbo branch. Via my instructions the Manager delivered such moneys to Chief Lere Adebayo.”
And at page 19:
At different times during the currency of the project, I paid various sums in cash to the Secretary to the State Government amounting to N20, 000, 000.00 and the Commissioner for Finance amounting to N65, 000, 000.00. … The money to the Commissioner for Finance, Chief Lere Adebayo was routed also in cash through the Bank Manager of my Bank at Osogbo.”
The appellant in his statement at pages 26 and 27 of the record denied all the allegations.
As rightly observed by learned counsel for the respondent, the facts of this case are distinguishable from the facts in Abacha V. The State (supra). In the instant case there are substantial allegations linking the appellant with unauthorised dealings with the money earmarked for the Governor’s House project. He has denied the allegations. At this stage of the proceedings, as held in the case of Ikomi V. The State (supra) the question to be answered is whether there is any ground for proceeding with his trial based on the information and proofs of evidence filed. His guilt or otherwise is not being considered at this stage. I am inclined to agree with the learned trial Judge that having regard to the proofs of evidence filed in this case, extracts of which have been reproduced above, a prima facie case has been disclosed, which requires some explanation from the appellant. This issue is accordingly resolved against the appellant.
In conclusion, I find no merit in this appeal. It is hereby dismissed. The ruling of the High court of Osun State, sitting at Osogbo in charge No. HOS/11C/2004 delivered on 25/4/04 per Bada, J. (as he then was) is hereby affirmed.
CHINWE EUGENIA IYIZOBA J.C.A.: I read before now the judgment just delivered by my learned brother, K.M.O. KEKERE-EKUN JCA. I agree entirely with her reasoning and conclusions. His Lordship has dealt fully and comprehensively with all the issues raised in the appeal. By way of emphasis I want to comment on two issues: (1) The appellant’s contention that the alleged transaction of operation of a bank account and withdrawal of money there from by the 1st accused that led to the present charge took place in Ibadan Oyo State of Nigeria outside the jurisdiction of Osun State High Court Osogbo, thus robbing the court of jurisdiction to entertain the case. (2) The appellant’s contention that the money drawn from the first accused Company account belonged to the 1st accused and not to the Osun State Government and that no money of the 1st accused had been reported missing or capable of being stolen.
In respect of the 1st issue, jurisdiction of the court to entertain the case as submitted in the respondent’s brief depend on the cause of action as shown in the information filed and proof of evidence and not on the appellant’s conception of what the case is or ought to be as set out in his affidavit. Omnia Nigeria Ltd. v. Dyktrade Ltd. (2007) 15 NWLR (Pt. 1058) SC 576 @ 598 – 599 Para H – A. It was clearly stated on the face of the charge that the offences for which the appellant was standing trial occurred within the jurisdiction of the Osun State High Court. Many of the elements of the offences charged were alleged to have occurred in Osun State. The case of the prosecution is that the appellant in collusion with the other two accused fraudulently converted sums of money meant for the Osun State Governor’s office project. The allegation is that the conspiracy to commit the offence was hatched in Osun State. The project is in Osun State. The money was alleged to have been delivered to the appellant in Osun State. Delivery of the money is obviously an important element of the offence and this is alleged to have taken place in Osogbo, Osun State. Elements of the offences charged are alleged to have taken place in Osogbo within jurisdiction of the Osun State High Court. Whether the appellant committed the offence or not is not material at this stage. From the information and proof of evidence it is not in doubt that the offence is triable by the Osun State High Court. The lower court is right in its ruling that the court has jurisdiction.
On the second issue, the appellant clearly jumped the gun. The prosecution must be allowed to present its case. Whether or not the money drawn from the first accused Company account belonged to the 1st accused and not to the Osun State Government and that no money of the 1st accused was reported missing will not deprive the Osun State High Court of jurisdiction to entertain the case. After the prosecution has presented its case, if the appellant believes he has no case to answer, it is at the point that the issue can be raised. Ekwunugo v. F.R.N. (2008) 15 NWLR (pt 1111) 630.
I agree entirely that there is no merit in this appeal. I also dismiss it and affirm the ruling of Bada J. (as he then was) in Charge No. HOS/11c/04.
MOORE A. A. ADUMEIN, J.C.A.: I read in draft the judgment just delivered by my learned brother, Kekere-Ekun, JCA. His Lordship has comprehensively and elaborately dealt with all the issues in this appeal. I completely agree with my learned brother that this appeal is devoid of merit and it ought to be dismissed. I also dismiss the appeal and affirm the decision of the lower court.
Appearances
PRINCE I.A. MIKAHEEL with TOLA ONIBONOJE ESQ. For Appellant
AND
N.N. ADEGBOYE ESQ. For Respondent
