MRS. OKEKE NENE CHRISTIE v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/12907(CA)
In The Court of Appeal of Nigeria
On Monday, the 25th day of March, 2019
CA/YL/72CN/18
RATIO
JURISDICTION: WHICH COURT HAS JURISDICTION TO TRIAL CASE OF GOVERNMENT CONTRACT
“The jurisdiction of the Federal High Court as conferred on it by Section 251 of the Constitution (as amended) particularly Subsection (3) as it pertains to its jurisdiction in criminal cases and matters does not cover simple contracts or wrongful diversion of government money as was alleged and decided by the trial Court. The facts that gave rise to the charge at the trial Court were founded on simple contract which the trial Court had no jurisdiction to entertain.” PER CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment)
JUSTICES:
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
MRS. OKEKE NENE CHRISTIE – Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA – Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment):
The Appellant as 1st Defendant at the Federal High Court, Yola, Adamawa State was arraigned by the Economic and Financial Crimes Commission (EFCC) with El-yadi Motors as 2nd Defendant on a two Count Charge of Conspiracy to obtain money by false pretence from the Government of Adamawa State, contrary to Section 8 (a) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006 punishable under Section 1 (3) of the same Act and with intent to defraud, obtained the sum of N132,500,000.00 from the Government of Adamawa State under the false pretence that the said sum was to be utilized for the procurement of twenty five (25) units of operational, Toyota Corolla (1.8 litres) 2015 model for the Commissioners of Adamawa State in which only seventeen units (17) out of twenty five (25) were delivered the sum of N36,050,000.00 for the remaining unsupplied (8) units for her personal benefit, thereby committed an offence contrary to the provisions of Section 1 (1) (b) of the Advance Fee Fraud and Fraud Related Offences Act, 2006 punishable under Section 1 (3) of the same Act.
In the lower Courts judgment delivered on 3rd May, 2018, it was held that the prosecution failed to establish her case against the Defendants but, ordered that the 1st Defendant (Appellant) be remanded in prison custody for five (5) years or pending the refund of the sum of N36,000,000.00 (Thirty six Million Naira) belonging to the Government of Adamawa State, whichever is earlier. It is against the order of remand without conviction and/or sentence that the Appellant appealed to this Court.
The background facts on the part of the Appellant are that the Appellant is the Managing Director of EL-YADI MOTORS LIMITED, a duly incorporated company that deals with auto-mobiles and discharged contracts for State Governments, corporate organizations and individuals including the Government of Adamawa State to the knowledge of the then Governor of Adamawa State, His Excellency, Barrister Bala James Ngillari (hereafter referred to as the Governor). The Governor on assumption of office negotiated with the Appellant for the purchase of 25 units of cars for his commissioners and indicated interest in Toyota Corolla (1.8 litres) 2015 model to which he directed the Appellant to conclude negotiations with his Chief of Staff. The Appellant thereafter sent the El-Yadi Motors Pro-forma Invoice (which at the trial was tendered in evidence as Exhibit DW1A) to the Chief of Staff. The invoice was for the sum of N6, 772,500.00 exclusive of tax as the price of the car per unit if multiplied by 25, which amounted to N169,300, 000.00. The Government raised a memo in respect of the transaction through the office of the secretary to the State Government wherein he entered the sum of N6, 712,500.00 as the unit price for each of the cars, which amounted to the sum of N167,812,500.00 for the 25 units which was approved by the Governor. Thereafter a deposit of N132,500,000.00 was paid into the account of El-Yadi motors and the appellant supplied 17 units of the vehicle and decided to source the remaining 8 units outside the country.
The Appellant thereafter travelled to the United States of America and secured 4 units of the cars, while working of the shipment, returned to Nigeria and was arrested by the operatives of Economic and Financial Crimes Commission (EFCC) where she was detained and her travel documents were withheld despite the Appellants release on bail pending trial. The Appellant was unable to travel out of the country and could not process the importation of the vehicles from the United States of America.
The Appellant was subsequently arraigned with El-Yadi Motors by the EFCC for the offences of conspiracy and obtaining by false pretence with intent to defraud.
The prosecution called 10 witnesses and tendered 37 Exhibits and closed their case while the Appellant in her defence testified and tendered one Exhibit, Exhibit DW1A and closed her case. The trial Court in its judgment held that the prosecution did not prove the alleged offences for which the Defendants were charged, ordered that the remand of the Appellant, without conviction or sentenced for five years or a refund of the sum of N36,050,000.00 to the Adamawa State Government.
The Appellant being dissatisfied with the judgment and the order of remand without conviction or sentence appealed to this Court.
The following issues were raised for the determination of the appeal thus:
1. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE ASSUMED JURISDICTION TO ENTERTAIN AND INDEED DETERMINE CHARGE NO. FHC/YL/107C/2015 (Distilled from ground 2 of the Notice of Appeal).
2. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE ORDERED THE REMAND OF THE APPELLANT FOR FIVE YEARS OR A REFUND OF THE SUM OF N36,050,000.00 TO ADAMAWA STATE GOVERNMENT AFTER HOLDING THAT THE PROSECUTION HAS NOT PROVED THE INGREDIENT OF THE OFFENCES FOR WHICH THE APPELLANT AND El-Yadi Motors WERE CHARGED. (Distilled from ground 1 of the Notice of Appeal).
3. WHETHER THE FAILURE OF THE LEARNED TRIAL JUDGE TO PRONOUNCE ON THE FIRST ISSUE SUBMITTED BY THE APPELLANTS COUNSEL IN HER FINAL WRITTEN ADDRESS HAS BREACHED HER FUNDAMENTAL RIGHT TO FAIR HEARING (Distilled from ground 3 of the Notice of Appeal).
4. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE HELD THAT THERE WAS NO CONTRACT BETWEEN THE APPELLANT AND ADAMAWA STATE GOVERNMENT YET HELD THE APPELLANT AND El-Yadi Motors LIABLE FOR WRONGFUL DIVERSION OF GOVERNMENT MONEY (distilled from the ground 4 of the Notice of Appeal).
The Respondent on her part adopted the issues as raised by the Appellant.
In arguing the appeal, the Learned Counsel to Appellant G.
C. Adikwu Esq. adopted and relied on his Amended Brief of Argument filed on 25/10/2018 and his Reply Brief filed on 8/10/2018 but deemed filed and served on 12/11/2018 in urging us to allow the appeal and set aside the decisions of the lower Court remanding the Appellant in custody without conviction. In arguing his issue one, it was submitted that the trial Court lacked the jurisdiction to have heard and determined the charge filed on 7th January, 2016 which presupposes that the charge was registered before the purported filing. It was argued that the charge was registered in 2015 but dated 6/1/2016 and filed on 7/1/2016 which inhibits the trial Courts jurisdiction to have tried the matter.
Further, that the facts giving rise to the judgment are rooted in an informal contract, as rightly held by the trial Court. It was argued that the trial Court is a Court of limited jurisdiction in criminal cases and does not have power over matters of simple contract. Reference was made to Section 251 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (hereafter referred to as the Constitution). It was submitted that neither the offence nor the punishment under which the Appellant was remanded is known to law, reliance was placed on Section 36 (12) of the Constitution. It was argued that the trial Court has no jurisdiction over simple contracts under Section 251 of the Constitution. See: ENL CONSORTIUM LTD VS. DONASULU BROTHERS NIG. LTD (2016) ALL FWLR (PT. 817) at 169, Paragraph 775, FELIX ONUORAH VS. KADUNA REFINERY & PETROCHEMICAL COMPANY LTD (2005) 2 S. C. (PT 11) at PAGE 7, Paragraphs 10 -12, TUKUR VS. GOVERNMENT OF GONGOLA STATE (1989) 9 S. C. 1 and ORTHOPAEDIC HOSPITALS MANAGEMENT BOARD VS. GARBA (2002) 7 S.C. 11 at PAGE 61 Paragraphs 24 26. Reliance was placed on the provisions of Section 8 (2) of the Administration of Criminal Justice Act (ACJA) 2015 which prohibits arrest on an issue that borders on simple contract.
It was argued that there was no cause of action since the Adamawa State Government had not fully paid for the supply of the vehicles and the Appellant failed to supply same at the agreed price.
In arguing this issue two, it was submitted that where the prosecution has failed to establish the guilt of an Accused/Defendant, the proper order the Court would make is that of discharge and acquitted. Further, that in the present case there was no conviction and sentence and that the Appellant was entitled to an order of discharge and acquitted. See: FAMOROTI VS. F. R. N. (2016) ALL FWLR (PT. 856). It was submitted that the order of remand of the Appellant was wrong since it was not based on her guilt and not backed up by any law. See: F.R.N. VS. AMAH (2016) ALL FWLR (PT. 818) AT 889 and 893. We were urged to hold that the learned trial judge was wrong when he ordered that the Appellant be remanded in custody after holding that the prosecution had not proved the ingredients of the offence the Appellant was charged with. It was concluded that the Appellant and the Government of Adamawa State have an undischarged obligation under their contract which is ongoing.
On the Appellants third issue, it was submitted that the trial Court was duty bound to pronounce on every issue submitted to it for determination and the failure to pronounce on the first issue formulated by the Appellant in her final written address which bordered on the jurisdiction of the lower Court to hear the matter breached her right to fair hearing. See: ABIOLA VS. F.R.N. (2015) ALL FWLR (PT 773) AT 1930, Paragraph 1933, EMIRATE AIRLINE VS. F.R.N (2015) ALL FWLR (PT 773) PAGE 1865, Paragraph 1868 and ADEDEJI VS. F.R.N. (2015) ALL FWLR (PT 776) at P. 536, Paragraph 538. It was submitted that where a partys right to fair hearing is breached as in the present case, the entire proceeding is a nullity, no matter how well the case was conducted and the decision would be set aside on appeal. See: OMONIYI VS. ALABI (2015) ALL FWLR (PT 774) 181 Paragraph 184. It was concluded that where the jurisdiction of a Court has been challenged, the Court is duty bound to first determine the issue of its jurisdiction first. See: PRESTIGE ASSURANCE PLC VS. SARA PRODUCTS LIMITED (2016) ALL FWLR (PT 818) AT 799, Paragraph 803. We were urged to hold that the failure of the High Court to determine first, the issue challenging its jurisdiction breached the Appellants right to fair hearing. We were urged to allow the appeal.
On the Appellants fourth issue, it was submitted that the relationship between the Appellant and the Government of Taraba State is contractual and the Appellants status with the State Government is that of a contractor through El-yadi Motors which was awarded the contract to supply 25 units of Toyota Corolla (1.8 litres) and that this in line with the testimony of the prosecution witnesses PW1, PW2 and PW9. It was submitted that the trial Courts holding that there was no contract is against the weight of evidence. Further, that a contract agreement could be oral or written. See: FELIX GEORGE & COMPANY VS. AFINOTAN (2015) ALL FWLR (PT. 778) PAGE 920, at 924 on the essentials of a valid contract, reliance was placed on the case of IMOKA VS. U.B.A PLC (2014) ALL FWLR (PT 717) PAGE 747, Paragraph 748. Further, that it was upon the agreement that the PW2 (Secretary to the State Government) raised Exhibit PW2A, a memo for the release of the sum of N167,812,500.00 for the purchase of the operational vehicles for the Commissioners. The total sum was approved out of which N132,500,000.00 was paid to the Appellant, leaving the balance to be paid to the Appellant before or upon completion of the statutory contract.
The Learned Counsel argued that there were contradictions in the case of the prosecution in respect of the evidence of the PW9 and PW10 regarding the number of unit of cars that is outstanding. The retention fee of the contractor and tax deductions. We were urged to resolve doublets in the prosecutions case in favour of the Appellant.
In response, the Learned Counsel to the Respondent, A. M. Labaran Esq., Senior Legal Officer, EFCC adopted his Brief of Argument filed on 3/10/2018 but deemed properly filed and served on 12/11/2018 as his argument in this appeal in urging us to dismiss it. In arguing his first issue it was submitted that the Learned trial judge was right to have assumed jurisdiction and entertained the charge that led to this appeal. On the date on the charge, it was submitted that the charge originals dated 19th November, 2015 was substituted with the one dated 6th January, 2016 without objection from the Learned Counsel to the Appellant, page 423 424 of the record of proceedings. It was submitted that the subject matter of the charge before the trial Court is not that of a simple contract but a special specie of contract duly codified by law which the trial Court has the power and inherent jurisdiction to entertain, as a procurement process to which the Public Procurement Act/Law applies for any purchase or supplies to the Government, Local, State or Federal.
The Learned Counsel to the Respondent argued that the proper procedure was not followed in the award of the contract to the contractor in line with the Adamawa State Public Procurement Law, 2013, particularly Sections 24, 30, 35 (1), 8 (1) (b) and 18 (4) for instance, contracts are to be awarded after an open bidding and not more than 30% mobilization fee should be paid before commencement of the execution of the contract. Also, in line with the provisions of the Procurement Law, that no certificate of no objection was obtained from the Bureau of Public Prosecution as required by Section 8 of the law. It was argued that non compliance with the Public Procurement Law in the award of the contract rendered the whole exercise of the award null and void by the provisions of Section 18 (4). It was contended that the sum of N132,500,000.00 was illegally obtained by the Appellant from the Adamawa State Government under a false pretense of procuring vehicles.
It was argued that once in course of performing a contract, inducement and pretences are used, it confers the Federal High Court with jurisdiction to entertain the matter under the Advance Fee Fraud and other Related Offences Act, 2006, particularly, Section 14, Section 1 (1)(b) was reviewed. See, ADEJUMO VS. AGUMAGU (2015) 12 NWLR (PT 1472) 1 C. A. and RODA VS. F. R. N. (2015) 10 NWLR (PT 1068) 427 S. C.
On the issue of cause of action, it was submitted that the issue of cause of action is not know in criminal parlance but, only in a civil procedure. In defining cause of action reliance was placed on the cases of AIG IMOUKHUEDE VS. UBAH (2015) 8 NWLR (PT 1462) 399 CA, PAGE 435, Paragraph C1 and REBOLD INDUSTRIES LTD VS. MAGREOLA (2015) 8 NWLR (PT 1461) 210 S. C. at 225, Paragraphs AC. We were urged to discountenance the argument on cause of action.
On the second issue, it was submitted that the decision of the trial Court is in accord with the Administration of Criminal Justice Act, 2015 (ACJA) and that the trial Court reserved an inherent power in the circumstances of the case to order the payment of money as expenses or compensation under
Section 319 (1) (a) of the ACJA and Section 328 (1) and (2) which provides for payment of the sum of money within the proceedings or on conviction.
The third issue is: whether the failure of the Learned Trial Judge to pronounce on the first issue submitted by the Learned Counsel to the Appellant in the final written address breached the Appellants fundamental right to fair hearing. The Learned Counsel to the Respondent submitted that it is academic. See, ODOM VS. P.D.P. (2015) 6 NWLR (PT 1456) 527 at 570 Paragraphs DE and ODEDO VS. OGUEBEGO (2015) 13 NWLR (PT 1476) 527 S. C. We were urged to discountenance the argument on this issue.
On the fourth issue, it was submitted that a party should not be allowed to benefit from his wrong in that the Appellant diverted the money entrusted to her by the Adamawa State Government as found by the Learned trial judge. See, MR. P. T. ADEDEJI VS. MR. MOSES OBAJIMI APPEAL NO. SC/154/2009/LPELR, SOLICITOR GENERAL WESTERN NIGERIA VS. FESTUS O. ADEBONOJO & ORS (1971), ALL NLR 181 and OLATUNDE VS. OAU & ORS (1998) LPELR 2575 S.C. We were urged to discountenance the Appellants argument under this issue.
In reply to the submissions of the Learned Counsel to the Respondent, in respect of issue one, it was reargued that the trial Court ought to have discharged and acquitted the Appellant having held that the prosecution failed to prove the guilt of the Appellant. See: IBRAHIM VS. STATE (2015) LPELR 40833. The Learned Counsel further defined various types of contract and the definition of contract it.
It was submitted that, without conceding that there was a breach of the Adamawa State Procurement Law, the Appellant as a contractor could not have been rightly said to have breached the Procurement Law but rather the Adamawa State Government who ought to have been joined as a necessary party, was not joined, the jurisdiction of the Federal High Court was not properly activated and therefore acted without jurisdiction in entertaining the matter. See: LAFFERI (NIG.) LTD VS. N. M. B. PLC (2015) ALL FWLR (PT 802) at 1578, Paragraph 1589. It was submitted that, the Adamawa State Procurement Law is a State Law, which the Federal High Court with its limited jurisdiction has no power to entertain a matter alleged to be in violation of a State Law bordering on simple contract. See Section 251 (AR) of the Constitution and the case ofFELIX ONUORAH VS. KADUNA REFINING and PETROCHEMICAL COMPANY LTD (2005) 2 SCNJ (PT 11).
On cause of action, it was submitted that, it covers Civil and Criminal Proceedings. See: WALTER WAGBATSOMA VS. FEDERAL REPUBLIC OF NIGERIA (2015) ALL FWLR (PT 812) at 1430 Paragraph 1455.
On issue two, it was submitted that Section 319 (1) (a) of the ACJA, 2015 contemplates injury and payment of damages as a result of the injury. It was argued that the sum of N36,050,000.00 that the trial Court ordered the Appellant to pay or be remanded without conviction and or sentence is not in the form of damages as contemplated by Section 319 (1) (a)of the ACJA. Further, that the sum ordered to be refunded is only recoverable by the Adamawa State Government through a civil suit and not via Section 319 (1) (a) of the ACJA, if the Government is no longer interested in the completion of the contract which is executory in nature.
On issue three, it was submitted that the issue is not an academic exercise in that the trial Courts failure to pronounce on the Appellants first issue at the trial Court is a breach of the Appellant fundamental right to fair hearing which renders the entire proceedings null and void. See: ABIOLA VS. F. R. N. (2015) ALL FWLR (PT 773) at 1930, Paragraph 1933 and OMONIYI VS. ALABI (2015) ALL FWLR (PT 774) 181 at 184.
On issue four, it was submitted that discharging the appellant after the trial Court held that the Respondent did not prove the alleged offence will not be tantamount to the appellant benefiting from her wrong.
I will resolve the issues as formulated by the Learned Counsel to the Appellant and adopted by the Respondent.
On the issue of the proper filing date of the charge, preliminary point raised by the Learned Counsel to the Appellant, the original charge was dated and filed on the 19th day of November, 2015, the charge was later substituted with the charge dated 6th January, 2016, when the matter came up on 2nd March, 2016 on application by the Respondent without objection on the side of the Respondent, pages 423 – 424 of the printed Record of Appeal. The Learned Counsel to the Appellant cannot rightly argue that the charge was defective. I discountenance the argument on the challenge of the charge being incorrectly dated.
No doubt the jurisdiction of the Federal High Court is limited to those listed under Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), it is specific. The facts leading to the trial and eventual remand of the Appellant in custody and refund of the sum of N36,050,000.00 is rooted in an informal simple contract or contract simpliciter, between the Appellant and the Adamawa State Government for the supply of cars to the Adamawa State Government on contract basis. The contract/supply was initiated by the proforma invoice sent by the Appellant to the chief of staff of the Adamawa State Government, Exhibit DW1 A specified the unit cost of each vehicle and the total sum for the twenty five (25) to be supplied. The State Government, through the Office of the Secretary to the State Government made their offer per unit to be multiplied by the twenty five units ordered. The agreed price per unit was N6,712,500.00 (Six Million, Seven Hundred and Twelve Thousand, Five Hundred Naira), when multiplied by twenty five (25) came to the sum of N167,812,500.00 (One
Hundred and Sixty Seven Million, Eight Hundred and Twelve Thousand Five Hundred Naira). A deposit of N132,500,000.00 (One Hundred and Thirty Two Million, Five Hundred Naira) was paid by the Adamawa State Government, following which the Appellant through El-yadi Motors supplied seventeen (17) units of cars, leaving a balance of eight (8) to be supplied. Before the supply of the eight units, the Appellant was arraigned with El-yadi Motors by the EFCC for the offences of conspiracy to obtain money by false pretence from the Government of Adamawa State contrary to the Provisions of Section 8 (a) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006 and punishable under Section 1 (3) of the same Act and obtaining by false pretence with intent to defraud contrary to the provisions of Section 1 (1) (b), punishable under Section 1 (3) of the same Act. Conspiracy has been defined as an agreement between two or more persons to do an unlawful act. See: KAYODE VS. STATE (2016) LPELR 40028 (SC) P. 32, paragraphs. AB in STATE VS. SALAW (2011) LPELR 8252 (SC) PP. 38 -39, paragraphs EA his Lordship, Muhammad, JSC defined conspiracy thus:
The general definition assigned to the word Conspiracy, in the realm of criminal Law, is that it is an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful/illegal act, coupled with an intent to achieve the agreements objective. Burtons Legal Thesaurus, 4th edition, in the Penal Code (PC) of the Northern Region of Nigeria (1963) under which the respondent was charged, Section 96 thereof defines conspiracy as follows:
(1) when two or more persons agree to do or cause to be done a) An illegal act; or b) An act which is not illegal by illegal means.
See, also POSU & ANOR VS. STATE (2010) LPELR 4863 (CA) P. 34, Paragraphs. EG, SHERIFF OGUNLEYE VS. THE STATE (2016) LPELR 40090 (CA) P.10, Paragraph E.
Section 8 (a) of the Act under which the Appellant was charged provides as follows:
8. A person who
(a) Conspires with, aids, abets or counsels any other person to commit an offence; While Section 1 (1) (b) provides as follows:
(1) Notwithstanding anything contained on any other enactment or law, any person who by any false pretence, and with intent to defraud.
(a)
(b) induces any other person, in Nigeria or in any other country, to deliver to any person;
The two charges for which the Appellant stood trial have nothing (in the elements constituting the offence) to do with a simple contract transaction. A simple contract where a State Government is involved is not listed in Section 251 of the Constitution as falling within the jurisdiction of the Federal High Court. In ONUORAH VS. KADUNA REFINING & PETROCHEMICAL CO. LTD (2005) LPELR 2707 (SC) P. 11, Paragraphs. EG, his lordship Akintan, JSC on whether the jurisdiction of the Federal High Court pertains to cases of simple contract held thus:
Since disputes founded on contracts are not among those included in the additional jurisdiction conferred on the Federal High Court therefore, had no jurisdiction to entertain the Appellants claim. The lower Court therefore, had no jurisdiction to entertain the Appellant.s claim.
The lower Court therefore, had no jurisdiction to entertain the appellant claim. The lower Court therefore, acted rightly in its decision that the Federal High Court lacked jurisdiction to entertain the claim. See: SEVEN-UP BOTTLING CO. LTD VS. ABIOLA & SONS BOTTLING CO. LTD (2001) 13 NWLR (PT. 730) 469; and TRADE BANK PLC VS. BENILUX (NIG.) LTD (2003) 9 NWLR (PT 825) 416 at 430 & 431.
The jurisdiction of the Federal High Court as conferred on it by Section 251 of the Constitution (as amended) particularly Subsection (3) as it pertains to its jurisdiction in criminal cases and matters does not cover simple contracts or wrongful diversion of government money as was alleged and decided by the trial Court. The facts that gave rise to the charge at the trial Court were founded on simple contract which the trial Court had no jurisdiction to entertain.
In the Respondents submissions under issue one, in paragraph 3.17 of the Respondents Brief of Argument, the Learned Legal officer submitted that the subject matter of the charge that gave rise to this appeal is “a special specie of contract duly codified by law.
Also, a special specie and unique class of contract known to law as procurement process. Throughout the argument of the Learned Legal Officer under this issue, alleged that the issue is that the laid down procedure in the Public Procurement Act/Law was not applied in the award of the contract to the Appellant and her company El-yadi Motors. The Learned Counsel then dwelt on the Provisions of the Adamawa State Public Procurement Law, 2013 which was alleged not to have been followed by the Adamawa State Government in the award of the contract to the Appellant as a contractor. Learned Counsel cited various Sections of the Adamawa State Public Procurement Law that were violated by the mode of award of the contract by the Adamawa State Government, for instance Sections 24, 30, 35 (1), 8(1) (b) and 18 (4) of the Law. In paragraph 3. 25 of the Respondents Brief of Argument, the Learned Counsel submitted thus:
The evidence adduced by the prosecution shows crystal that, none of the above process was followed before the award of contract to the contractor.
The above submission is a summary of the Learned Counsels submission under issue one; a challenge of the mode of the award of contract of the supply of the vehicles by the Appellant through her company El-yadi Motors. The argument tended to challenge the award of the contract as a whole and the tone was as if the Adamawa State Government was standing trial. It was alleged that the award was null and void ab initio and a way the State Government diverted funds, not the Appellant! The Adamawa State Government was not under trial.
Further, a contract the Learned Counsel classified as special specie of contract was argued to be an illicit act, Exhibit 9A, the contract document not having been signed at the same time, it was argued that a contract could be oral or written. The argument was inconsistent, blowing hot and cold so to say. It was argued that the noncompliance with the Public Procurement Law of Adamawa State rendered the whole exercise null and void and at the same time, concluded that the Appellant who did not award the contract obtained the deposit paid under false pretence of procuring vehicles but, vehicles were supplied. Learned Counsel went on and on about the mode of the award of the contract to the Appellant for the supply of the twenty five (25) vehicles.
Further, for whatever it is worth, at page 580 of the printed records of appeal, in the judgment of the lower Court, the learned trial judge questioned the mode of the award of the contract of supplying twenty five (25) vehicles to the Adamawa State Government by the Governor of the State to the contractor, the Defendant and her company, in that the contract document was not signed before the first payment was made. The procedure of the part payment was questioned. Also, at page 581 of the printed Records of Appeal, the Learned trial judge made suggestions that if the price of the cars per unit had gone up before the completion of the supply, the Appellant ought to have informed the Governor for a variation in view of the increase in the cost per unit. Further, at page 582 the trial Court argued that the agreement was between the Appellant, her company and the Adamawa State Government and not the Governor personally.
The issue of supply of vehicles by the Appellant and her company as contractors ran through the judgment of the lower Court. The lower Court was therefore aware that the facts border on a contractors supply of vehicles to the Adamawa State Government, on contract basis. The trial Court ought not to have tried the matter which was clearly not within its jurisdiction. I hold that the lower Court had no jurisdiction to have entertained the matter. The first issue is resolved in favour of the Appellant.
In view of the resolution of the first issue, that the trial Court had no jurisdiction to have entertained the matter there would be no need to delve into the issue of whether the lower Court was right or wrong to have made an order of remand of the Appellant and refund of the sum of N36,050,000.00 (Thirty Six Million, Fifty Thousand Naira).
Similarly, the issue of whether the Learned trial judge was right not be have pronounced on the first issue submitted by the Appellants Counsel and breached the Appellants right to fair hearing is no longer a live issue.
Issue four is also overtaken by events in the resolution of issue one. Determining issues two, three and four would not be of any benefit in view of the decision in resolution of issue one, it would be purely academic which in a plethora of judicial authorities, the Courts do not waste their precious judicial time determining academic questions. Recently, the Apex Court reiterated the attitude of the Courts to academic issues in the case of ECOBANK VS. HONEYWELL FLOUR MILL PLC. (2018) LPELR-45124(SC) P.47, Paragraphs A-F, his lordship Okoro, JSC held thus:
Courts are not set up to engage its precious judicial time in academic exercise. In Salik V. Idris & Ors (2014)15 NWLR (Pt. 1429) 361 (2014) LPELR-22909 9SC) at paras 39-40, paragraphs F-C, this Court made it clear:- when a Judge restrains himself from deciding issues in a case or the whole case because his effort would amount to an academic exercise, all that his Lordship is saying is that if he decides the suit it would end with hollow victory. A victory with no value whatsoever. A victory that cannot be enforced. That explains why in a plethora of cases it has been said that Court should not engage in academic exercise, rather, Court should restrict judicial time to determine live issues. See also, Oyeneye Vs. Odugbesan (1972) 4 SC 244; Adelaja & Ors Vs. Alade & Ors (1999) 6 NWLR (Pt.608) 544; Bhojwani Vs. Bhojwani (1996) 6 NWLR (Pt.457) 663; Bamgboye Vs. Unilorin (1999) 10 NWLR (Pt. 622) 290.
In the final analysis, the appeal is meritorious, same succeeds.
The judgment of the learned trial Judge, B.B. Aliyu, J (as he then was) in respect of the appellant in Charge No. FHC/YL/107/2015 delivered on 3rd May, 2018 is hereby set aside. The Appellant that was ordered to be remanded in prison custody for five years is to be released from prison custody forthwith.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned brother CHIDI NWAOMA UWA JCA. I agree entirely with my learned brother that the Court below was aware that the facts of the case bordered on a contractors supply of vehicles to the Adamawa State Government on contract basis. The Court below therefore lacked the jurisdiction to entertain the matter.
For this reason, I too set aside the judgment delivered on 3rd May, 2018 in Suit No. FHC/YL/107/2015 by the Court below.
The Appellant, ordered to be remanded in prison custody for five years should be released forthwith.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I have read a draft copy of the judgment just delivered by my learned Brother Uwa JCA. I agree with the reasoning and the conclusions therein. The Appeal succeeds and is hereby allowed. I abide with the consequential order.
Appearances:
G. C. Adikwu, Esq. with him, F. J. Akau, Esq. For Appellant(s)
A. M. Labaran, Esq. (Senior Legal Officer EFCC) For Respondent(s)
