ADAOHA UGO-NGADI v. FEDERAL REPUBLIC OF NIGERIA (2015)

ADAOHA UGO-NGADI v. FEDERAL REPUBLIC OF NIGERIA

(2015)LCN/7847(CA)

In The Court of Appeal of Nigeria

On Thursday, the 30th day of April, 2015

CA/L/1042/2014

RATIO

COURT: JURISDICTION; WHETHER THE DETERMINATION OF THE JURISDICTION OF THE COURT WILL BE TAKEN IN THE LIGHT OF THE ENABLING LAW VIS-À-VIS THE CHARGE AGAINST THE ACCUSED PERSON

The law is settled beyond any controversy that a determination of the jurisdiction of the court will be taken in the light of the enabling law vis-a-vis the charge preferred against the accused person. The fundamental nature of jurisdiction in this regard requires that an objection to the criminal jurisdiction of the court be determined on the basis of available materials placed before the court. Thus, in appropriate cases, it may be necessary to examine the proof of evidence and other materials the prosecution sought to rely on in establishing the guilt of an accused person. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

COURT: JURISDICTION; THE CRIMINAL JURISDICTION OF THE FEDERAL HIGH COURT

The purport of Section 251(3) is clear and needs not raise any confusion with regards the criminal jurisdiction of the Federal High Court. I think, that by virtue of the provision of Section 251(3), the Federal High Court is imbued and invested with criminal jurisdiction over all matters and causes which the Constitution has conferred civil jurisdiction on it. As learned counsel for the Appellant rightly noted, in determining the purport of Section 251(3), one must not fail to appreciate the fact that the word “also” as used in the provision is in ‘continuation’ of the exclusive jurisdiction already conferred upon the Federal High Court by Subsection 1 of Section 251. This is a literal interpretation of that provision which is clear enough. Furthermore, there is no mention of the State High Court either directly or indirectly nor is there any contemplation of the State High Court thereunder. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

PRACTICE AND PROCEDURE: THE PRINCIPLE OF “EXPRESSIO UNIS EXCLUSIO ALTERIUS”; WHETHER THE EXPRESS AND UNAMBIGUOUS MENTION OF ONE THING IN A STATUTORY PROVISION, AUTOMATICALLY EXCLUDES ANY OTHER WHICH OTHERWISE WOULD HAVE APPLIED BY IMPLICATION WITH REGARD TO THE SAME ISSUE

It is trite law, based on the principle of “expressio unis exclusio alterius”, that the express and unambiguous mention of one thing in a statutory provision, automatically excludes any other which otherwise would have applied by implication with regard to the same issue. See DONBRAYE & ANOR v. PREYOR & ORS (2014) LPELR-22286; EGEONU v. INEC & ORS (2014) LPELR-22868 (CA). per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

COURT: JURISDICTION; THE GUIDELINE FOR DETERMINING THE SCOPE AND EXTENT OF THE ADMIRALTY JURISDICTION OF THE THEN HIGH COURTS

In ALUMINIUM MANUFACTURING CO. LTD v. N.P.A. (1987) NWLR (Pt. 51) 475, in providing general guidelines for determining the scope and extent of the admiralty jurisdiction of the then High Courts, the Court, PER OPUTA, JSC held: “On what does the jurisdiction of the admiralty court depend? It does not depend on the fact that something has taken place on the high sea. That it happened there is no doubt, irrespective of statute, a necessary condition for the jurisdiction of the Admiralty Court, but there is the further question, what is the subject matter of that what has happened on the high sea? It is not everything which take place on the high sea which is within the jurisdiction of the admiralty court… You have to consider three things – the locality, the subject matter of complaint and the person with regard to whom the complaint is made…” per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

PRACTICE AND PROCEDURE; PRIMA FACIE CASE; THE DEFINTION OF A PRIMA FACIE CASE

Prima facie case has been defined in plethora of cases. In SALZGITTER STAHL GMBH v. TUNJI DOSUNMU INDUSTRIES LTD (2010) 11 NWLR (Pt. 1206) 589, the Supreme Court states thus: “Simply put the phrase i.e. “prima facie” (which applies as a rule of onus of proof in the law of evidence) means as per evidence which if accepted, appears to be sufficient to establish a fact or sustain a Judgment unless rebutted by acceptable evidence to the contrary. In other words, it is not conclusive. It is evidence (as distinct from proof) that is, on the first appearance. The phrase “prima facie” when it is used in the con of such matters signifies that at the close of the plaintiff’s case, the case is not sufficient; that is to say where the plaintiff fails to lead factual evidence or legal grounds. See DURU v. NWOSU (1989) 4 NWLR (Pt. 113) 23 AT 41, and AROMIRE v. AWOYEMI (1972) 2 SC 1. In such cases, the Court does not take into account at that stage the evidence called for the defence…” per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

CRIMINAL LAW: THE OFFENCE OF CONSPIRACY; WHAT THE PROSECUTION MUST PROVE TO ESTABLISH THE OFFENCE OF CONSPIRACY AND WHETHER CONSPIRACY IS PROVED BY DIRECT EVIDENCE OR CIRCUMSTANTIAL EVIDENCE

To prove the offence of conspiracy, the Supreme Court in YAKUBU v. THE STATE (2014) LPELR-2240 enumerated the ingredients required of the prosecution to prove the offence. PER KEKERE-EKUN, JSC AT PAGE 12, PARAS. E-G held: “To prove conspiracy, the prosecutor must prove the following:-

An agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
Where the agreement is other then an agreement to commit an offence that some act besides the agreement was done by one or more of the parties in furtherance of the agreement.

iii. Specifically that each of the accused persons individually participated in the conspiracy.”

It is settled law that conspiracy is seldom proved by direct evidence but by circumstantial evidence. The actual agreement alone constitutes the offence and it is not necessary to prove that the act has in fact been committed. See YAKUBU v. STATE (supra); OBIAKOR v. THE STATE (2002) 6 SC (Pt. II) 33 AT 39-40. In an offence of conspiracy, at least two persons are required to enter into an agreement to an unlawful act; one person cannot conspire with himself. The agreement between them is the consent to carry out the unlawful act or lawful act in an unlawful way. Their covert act must have been translated into an overt act. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

CRIMINAL LAW: THE OFFENCE OF FORGERY; WHAT THE PROSECUTION MUST PROVE TO ESTABLISH THE OFFENCE OF FORGERY AND UTTERING OF A FALSE DOCUMENT

On the offence of forgery and uttering of a false document, what the prosecution needs to prove is as stated in ODIAWA v. FRN (2008) LPELR-4230 (CA); ALAKE v. STATE (1991) 7 NWLR (Pt. 205) 56 thus:

“The offences of forgery and uttering have been defined in Section 467(2) (c) of the Criminal Code. Their ingredients are:

That the accused utters or forges a document.
That he knew the document to be false.
That he presented the said document to the other party with the

intention that it could be acted upon.

That the document was acted upon by the other party to his detriment (the 4th ingredient is not always necessary to prove once the other 3 have been established).

The offence of possession of documents containing false pretence is a question of fact. In other words once documents containing false pretences, as defined above are found in the possession or constructive possession of a person who may not necessarily be the author the offence is complete. The offence of uttering is also akin to that of forgery.” per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

CRIMINAL LAW: THE OFFENCE OF OBTAINING PROPERTY BY FALSE PRETENCES; THE INGREDIENT OF OBTAINING BY FALSE PRETENCE

In AGUBA v. F.R.N. (2014) LPELR-23211, this Court held that the offence of obtaining property by false pretences could be committed in writing, or even by mere oral communication of the accused person. See AMADI v. F.R.N. (2008) 18 NWLR (Pt. 1119) 259; ONWUDIWE v. F.R.N. (2006) 10 NWLR (988) 382; OSHIN v. IGP (1961) 1 SCNLR 40 where the court listed the ingredients of obtaining by false pretence thus: (a) that there was a pretence; (b) that the pretence emanated from the Defendants (c) that it was false; (d) that the Defendants knew of the falsity or did not believe in its truth; (e) that there was an intention to defraud; (f) that the thing is capable of being stolen and (g) that the Defendants induced the owner to transfer the property. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

PRACTICE AND PROCEDURE: OPERATION CARRIED OUT UNDER A REPEALED LAW; WHETHER AN OPERATION CARRIED OUT UNDER A REPEALED LAW SUBSISTS EVEN AFTER A REPEAL OF THE LEGISLATION

It is therefore settled that an action or an operation carried out under a repealed law subsists even after a repeal of the legislation. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

ADAOHA UGO-NGADI – Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA – Respondent(s)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This Appeal is from the ruling of the Lagos State High Court Per Okunnu J. delivered on 10th October, 2014 wherein it dismissed the Appellant’s no case submission application dated 2nd June, 2014.

The said application challenged the lower court’s jurisdiction in respect of information that the Appellant initiated before it relating to some criminal charges arising from diverse matters and asked for the discharge of the Appellant on the ground that no case was made out against him at the close of the prosecution’s case.

The lower Court dismissed the application and assumed jurisdiction and struck down Section 19 of the Admiralty Jurisdiction Act as being inconsistent with the Constitution. The Appellant dissatisfied with the ruling appealed to this Court vide an amended Notice of Appeal dated and filed on 29th January, 2015 on 12 grounds.

The Appellant’s Brief is dated and filed on 10th February, 2015 and a Reply Brief dated and filed 24/2/15, same was settled by Chief Wole Olanipekun, SAN with Yusuf Asamah

Kadiri, Esq., Edoka Dox Onyeke, Esq., Ayo Adesanmi, Esq., Ismail O. Muftau, Esq., Wole Okenile, Esq., Ademola Adesina Esq., Bolarinwa Awujoola Esq., Richmond E. Idaeho Esq., of Wole Olanipekun & Co., while the Respondent’s brief is dated and filed on 20/2/15 it was settled by Rotimi Jacobs, SAN with Adebisi Adeniyi, Esq. of Rotimi Jacobs & Co.

The Appellant formulated four (4) issues for determination thus:

(i) Considering the clear Provisions of Section 251(1)(a)(g)(n)(s) and (3) of the Constitution; Items 36, 39, 67 and 68 of the Exclusive Legislative List; Section 8(1) of the Federal High Court Act; Sections 1(1) & (2), 19 and 25 of the Admiralty Jurisdiction Act, binding decision of the Court of Appeal and Supreme Court on the subject cited to the lower court, as well as the evidence elicited during trial, whether the lower Court did not fall into a serious error by assuming jurisdiction on the Information dated 20th July, 2012 filed before it against the Appellant. (Grounds 1, 2, 3, 4, 5, 6 and 7).

(ii) Having regard to the ingredients of the offence in the Information, the evidence adduced by

the prosecution and the extent to which such evidence was discredited under cross-examination as well as the inherent contradiction in the testimonies of the prosecution witness whether the lower court was not in grave error by over ruling the Appellant’s no case submission. (Grounds 9, 10 and 11).

(iii) Considering the clear provision Section 36(12) of the Constitution vis-a-vis counts 3, 4, 5, 7 and 8 of the information bought under the various section of the Criminal Code, Cap C17 Vol. 2 Laws of Lagos State of Nigeria, 2003 (which is a non-existing law), whether the lower court did not fall into grave error by countenancing the information (Ground 8).

(iv) Considering the principle of distinct corporate personality of a company from its shareholders qua directors, whether the appellant could be made vicariously liable for an act allegedly committed by the company – Ontario Oil & Gas Ltd. (Ground 12).

The Respondent counsel seemingly agreed with the four issues for determination of the Appellant but framed in another way thus:

(i) Whether the High Court of Lagos State has no Jurisdiction to

entertain the information contained in Charge No. ID/115C/2012 bordering on the offence of obtaining money by false pretence under the Advance Fee Fraud & Other Fraud Related Offences Act 2006; forgery and altering under Section 467 and 468 of the Criminal Code Cap C17 Vol. 2 Laws of Lagos State, Nigeria 2003. (Grounds 1, 2, 3, 4, 5, 6 & 7).

(ii) Whether the lower court was not right in holding that a prima facie case, sufficient enough to call upon the Appellant to enter into his defence has been made out (Grounds 1, 2, 3 & 6).

(iii) Whether Counts 3, 4, 5, 7, & 8 of the information dated 20th July, 2012 brought under the Criminal Code Law Cap C17 Laws of Lagos State of Nigeria 2003 are liable to be struck out on the alleged grounds that they are not based on an existing law and are therefore caught by the provision of Section 36(12) of the Constitution of the Federal Republic of Nigeria (Ground 4).

(iv) Whether the learned trial Judge was not right in holding that the doctrine of separate legal personality of a Cap C17 Laws of Lagos State of Nigeria 2003 are liable to be struck out on the alleged grounds that they are not

based on an existing law and are therefore caught by the Provision of Section 36(12) of the Constitution of the Federal Republic of Nigeria (Ground 4).

(iv) Whether the learned trial Judge was not right in holding that the doctrine of separate legal personality of a Limited Liability Company cannot be applied at the stage of a No Case Submission. (Ground 4).

The two sets of issues in my opinion are essentially the same except that, the Respondent’s issues are from a different angle. Therefore I shall adopt Appellant’s issues.

ISSUE 1

Appellant submits that the Section 251(1)(a) (g) (n) (s) & (3) of the 1999 Constitution (as amended) as well as Items 36, 39, 67 and 68 of the Exclusive Legislative List of the Constitution; Section 8(1) of the Federal High Court Act is apt and that the Federal High Court Act is an act of the National Assembly, it supersedes any other law of a state on the same subject it covers, this is the doctrine of covering the field in legislations which applies. He relied on A-G ABIA

STATE v. A-G FEDERATION (2002) 6 NWLR (Pt. 763) 264 AT 431-432. He submitted that Section 251(3) of the Constitution vests jurisdiction on the Federal High Court and that Section 7(4) of the Federal High Court Act makes it clear that only the Federal High Court can exercise criminal jurisdiction on the subject matter before the Court while Section 272(1) of the Constitution subjects the jurisdiction of a State Court to that of Federal High Court. Counsel contended that jurisdiction is the live-wire and determines the authority of a court of law or tribunal to entertain a case. He relied on OKOYE v. OKONKWO (2006) ALL FWLR (Pt. 332) 1526; OKOLO v. UNION BANK PLC (2004) ALL FWLR (Pt. 197) 981 AT 992; MADU v. MBAKWE (2008) 10 NWLR (Pt. 1095) 293 AT 325-326 and OBADA v. MILITARY GOVERNOR OF KWARA STATE (1990) 6 NWLR (Pt. 157) 482.

Counsel further submitted that Federal High Court is imbued and invested with criminal jurisdiction over all the matters which the Constitution has conferred civil jurisdiction on it by virtue of Section 251(3) of

the Constitution and that despite the submission of counsel persuading the lower court with relevant constitutional and statutory provisions as well as binding decisions of both the Court of Appeal and the Supreme Court, the lower court held to the contrary at page 1965-1967 of the record. It is the submission of counsel that the lower court was bound by decision of the Court of Appeal in OKEY NWOSU v. FRN (supra); AKINGBOLA v. FEDERAL RUPUBLIC OF NIGERIA delivered on 31st December, 2014.

On interpretation of Section 251 of the Constitution, he argued that the lower court failed to appreciate the fact that the word “also” applied in Section 251(3) is in continuation of the exclusive jurisdiction already conferred on the Federal High Court by Section 251(1), by specifically restating the fact that it is the same court that has jurisdiction in criminal matters arising from the civil ones. Counsel referred to the latin maxim: ‘expressio unis est exclusion alterius’ and ABACHA v. FEDERAL REPUBLIC OF NIGERIA (2006) 4

NWLR (Pt. 970) 239 AT 309 and that Section 1(2) of the Admiralty Jurisdiction Act 1991 Cap A5, Laws of Federation of Nigeria 2004 vests exclusive jurisdiction in the Federal High Court in respect of carriage and delivery of goods by sea. Expatiating on this, Chief Olanipekun, SAN submitted that from the 9 count charge, each of the counts relates to:

(i) Goods carried/carriage of goods by sea on board ship

(ii) Petroleum products or Oil mineral crude; and

(iii) Revenue of Federal Republic of Nigeria.

He submitted that the subject matter of the information ousts the jurisdiction of the court and that the entire subsidy scheme is an initiative of the Federal Government for the management of the downstream sector of the petroleum industry. He contended that the attention of the lower court was drawn to the following cases which were jettisoned by the Court: NWOSU v. FEDERAL REPUBLIC OF NIGERIA (supra); OLABODE GEORGE v. FEDERAL REPUBLIC OF NIGERIA (2014) 5 NWLR (Pt. 1399) 1; DALHATU v. TURAKI (2003) 15 NWLR (Pt. 843) 310 at 350-351; ATOLAGBE v. AWUNI (1997) 9 NWLR (Pt. 522) 356 AT 561; GAMBARI v.

GAMBARI (1990) 5 NWLR (Pt. 152) 572; DR. MADUBUOGO OKENJO & ORS v. DR. MUDIAGA ODJE & ORS (1985) 10 SC 297 AT 268.

He referred to introductory words of Section 251(1) which overrides any/every contrary provision in the Constitution and argued that the word “Notwithstanding” used therein is further reinforced by the use of “shall” in describing the exclusive jurisdiction of the Federal High Court and that whenever the word “shall” is used in a statute, it denotes compulsion, peremptoriness, mandatoriness. He referred to OGIDI v. STATE (2005) 9 NWLR (Pt. 918) 256 AT 327; EMORDI v. IGBEKE (2011) 9 NWLR (Pt. 1251) 24 AT 35, 38; UGWU v. ARARUME (2001) 12 NWLR (Pt. 1048) 367.

Counsel on Section 251(1)(g) of the Constitution submitted that the section gives exclusive jurisdiction to the Federal High Court on admiralty matters generally and that Sec 251(1)(g) of the Constitution also absorbs other civil or criminal jurisdictions already conferred on the Federal High Court by an Act of National Assembly. He argued that Supreme Court

confirmed jurisdiction of the Federal High Court in ALPINE SHIPPING LTD v. E.A. CHEMICALS (2001) 12 NWLR (Pt. 728) 759; BRAWAL SHIPPING (NIG) LTD. v. E & C.S. LTD (2001) 14 NWLR (Pt. 732) 172 at 193; SHELL PETROLEUM DEVELOPMENT CO. v. MAXON (2001) 9 NWLR (Pt. 719) 541 at 555; SHELL PETROLEUM DEVELOPMENT CO. (NIG) LTD v. ISAIAH (2001) 11 NWLR (Pt. 723) 168 AT 179; UCHEGBU v. SPDC (NIG) LTD (2010) 2 NWLR (Pt. 1178) 285 AT 307 where it was held that in oil spill cases, it is only the Federal High Court that has jurisdiction to adjudicate. He referred to KASHIKU FARMS v. A-G BENDEL (1986) 1 NWLR (Pt. 19) 695 AND A-G FEDERATION v. ABUBAKAR (2008) 16 NWLR (Pt. 1112) 135 AT 158.

He submitted that the lower court expanded its jurisdiction to acquire jurisdiction in the matter and in so doing struck down Section 19 of the Admiralty Jurisdiction Act at page 1968 of Vol. 4 of the record. Counsel submitted that this is ultra vires and unconstitutional and striking the section out suo motu without asking for counsel’s address on it is a denial of the appellant his right to fair hearing. He relied

on FINNIH v. IMADE (1992) 1 NWLR (Pt. 219) 511; EJEZIE v. ANUWWU (2008) FWLR (Pt. 422) 1005 AT 1049; PEENOK INVESTMENT LTD. v. HOTEL PRESIDENTIAL (1983) 4 NCLR 122 AT 163.

Chief Olanipekun, SAN further submitted that the striking down of Section 19 of the Act upon which the lower court assumed jurisdiction is clearly ultra vires having regards to the decision in AKINGBOLA v. F.R.N. (Supra). He cited CPC v. INEC & ORS CA/A/EPT/RPES/11 delivered on 4/7/2011 and HON. (SIR) STANLEY UGOCHUKWU OHAJURUKA & ANOR v. CHIEF THEODORE A. ORJI & 2 ORS. EPT/AB/G/15/2011 delivered on 12th September, 2011″.

He urged that the issue be resolved in favour of the Appellant.

The Respondent’s Counsel, Rotimi Jacobs, SAN traced the history of the jurisdiction of the Federal High Court from the time when it was known as the Federal Revenue Court by virtue of Decree No. 13 of 1973 till date. He referred to Section 7(3) & 8(1) thereof on the extent of criminal jurisdiction of the Federal High Court and that it metamorphosed into Section

251 of the 1999 Constitution and submitted that it did not confer exclusive jurisdiction on the Federal High Court in respect of criminal matters except where it is expressly stated. He referred to ABBAS v. C.O.P. (1998) 12 NWLR (Pt. 577) 308 at 319 and submitted that the Federal High Court could only try offences in the Criminal and Penal code that are referred to as federal offence or in respect of which proceedings may be initiated at the instance of the Attorney-General of the Federation pursuant to Section 174 of the 1999 Constitution (as amended). He contended that the charges filed against the Appellant would reveal that they are offences of forgery, uttering and conspiracy under Section 467 & 468 of the Criminal Code and obtaining money by false pretence under the Advance Fee Fraud and Other Fraud Related Offences Act which is a mere reproduction of Section 419 of the Criminal Code and that those Sections of the Criminal Code are clearly outside the sections outlined in the Laws of the Federation.

On the argument that Section 251 of the

Constitution and the Exclusive Legislative List of 1999 Constitution confer exclusive jurisdiction on the Federal High Court in criminal matters, Jacobs, SAN relied on DABOH v. THE STATE (1977) NSCC 309; GREEN v. OWOH (1962) NSCC 416; THE STATE v. WILLIAMS (1978) NSCC 38; AKWULE v. THE QUEEN (1963) NSCC 157; EHINDERO v. FRN (2014) 10 NWLR (Pt. 1415) 281; ABBAS v. C.O.P. (1998) 12 NWLR (Pt. 577) 308 AT 318 all to the effect that Supreme Court has held that the Federal High Court does not have jurisdiction under ordinary state created offences which are within the competence of the state under its Criminal Code. He submitted that there is nothing in Section 251(3) that confers exclusive jurisdiction on the Federal High Court in criminal matters arising from items listed in the Exclusive Legislative List are causes or matters listed in Section 251(1) of 1999 Constitution but that it confers jurisdiction in civil matters to the exclusion of any other court in respect of items listed in (a) – (s).

On the issue of trial court not following NWOSU v. FEDERAL REPUBLIC OF NIGERIA (supra); OLABODE

GEORGE v. FEDERAL REPUBLIC OF NIGERIA (supra), Counsel argued that the lower court is bound by Supreme Court’s decision on the issue of jurisdiction and particularly the decisions of AKWULE & ORS v. THE QUEEN; STATE v. WILLIAMS; BRONIKS MOTORS LTD. v. WEMA BANK; DABOH & ANOR. v. STATE; QUEEN v. OWOH; A-G ONDO v. A-G FEDERAL; EZE v. FEDERAL REPUBLIC OF NIGERIA and the likes which have interpreted the extent of the criminal jurisdiction of the Federal High Court viz-a-viz that of the State High Court. He cited OLUBEKO v. FEDERAL REPUBLIC OF NIGERIA (2014) LPELR-22632 which departed from the decision in Nwosu case; ADIGWE v. FEDERAL REPUBLIC OF NIGERIA (2013) 1 FLR 310. He added that the character of the evidence for the charges is not relevant and does not determine jurisdiction and that this was the settled position of the law. He cited STATE v. WILLIAMS (supra) and ONWUDIWE v. FEDERAL REPUBLIC OF NIGERIA (2006) 10 NWLR (Pt. 988) 382 AT 425.

He urged the court to follow the decision of Supreme Court.

In Reply, the

Appellants submitted that the issues formulated do not flow from the grounds of appeal. He relied on TAKUM L.G. v. UCB (NIG.) LTD (2003) 16 NWLR (Pt. 846) 288; WILLIAMS v. DAILY TIMES NIG. LTD (1990) 1 NWLR (Pt. 124) 1 AT 35; IMNL v. PEGOFOR IND. LTD (2003) 15 NWLR (Pt. 947) 1 at 19. He opined that the submission in Paragraph 4-10 pages 8 of the Respondent’s brief is irrelevant and inappropriate and that all the cases cited, including DABO v. STATE (supra) were decided under the existing state and status of the law then and that the applicable law to a cause of action is the law in operation before accrual of the cause of action and not the law in operation before the accrual. He cited NWORA v. NWABUEZE (2013) 16 NWLR (Pt. 1379) 1 AT 25; AMAECHI v. INEC (2008) 5 NWLR (Pt. 1080) 227 AT 352; INAKOJU v. ADELEKE (2007) 4 NWLR (Pt. 1025) 423 AT 597, F.B.N. v. MAIWADA (2013) 5 NWLR (Pt. 1345) 444 AT 483.

Counsel distinguished each case relied upon by Respondent to show that the charges in their case were different and that even in the case of NDIC v. OKEM ENT. LTD (2004) 10 NWLR (Pt. 880) 107 at

172-173, the Supreme Court held that the position in BRONIK MOTORS v. WEMA BANK (supra) no longer represents the true position of the law. He further argued that the submission of the Respondent that the Court of Appeal departed from its earlier decision in Okey Nwosu case in case of OLUBEKO v. FEDERAL REPUBLIC OF NIGERIA (2014) LPELR 22632 is misleading because in the latter case, no reference was made to Nwosu case. He submitted that the Court of Appeal cannot overrule itself. Counsel cited CCB NIG. LTD v. ONWUCHEKWE (2000) 3 NWLR (Pt. 647) 65 AT 73; UMARU v. ALIYU (No. 1) (2010) 3 NWLR (Pt. 1180) 135 AT 161; BONUNWE v. REC, DELTA STATE (2006) 1 NWLR (Pt. 961) 286; ONWARD ENT. LTD v. MV MATRIX (2010) 2 NWLR (Pt. 1179) 530 AT 556.

Counsel further submitted that the Respondent has failed, refused and neglected to reply to further salient jurisdictional issues and submission made in the Appellant’s brief, touching on admiralty contents and con of the charge before the lower court, the Admiralty Jurisdiction Act and the striking out of Section

19 thereof by the lower court in order to assume jurisdiction, which according to counsel are taken as conceded by the Respondent. He cited ADESANYA v. OTUEWU (1993) 1 NWLR (Pt. 270) 414; NWANKWO v. YAR’ADUA (2010) 12 NWLR (Pt. 1209) 518 AT 556.

It is counsel’s submission that where there is a court that has composite jurisdiction on a matter and there is another one that appears to have tangential jurisdiction, it is the court that has total and composite jurisdiction that entertains the subject matter. He cited TUKUR v. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) 513 AT 549; AJAO v. ODOFIN (1999) 12 NWLR (Pt. 631) 471 AT 479, OKOROMA v. UBA (1999) 1 NWLR (Pt. 587) 359 AT 318-379; IBORI v. FRN (2009) 3 NWLR (Pt. 1128) 283 and urged that the submission of the Respondent be discountenanced and hold the lower court lacks jurisdiction to entertain the charge brought before it against the Appellant.

Apparently, this issue is to determine within the narrow compass of this case, the court that has jurisdiction to entertain the action.

It evidently raises sundry issues on the provisions of Section 251 of the 1999 Constitution (as amended), particularly Section 251(3) thereof which deals with the criminal jurisdiction of the Federal High Court as it applies to the information brought against the Appellant at the trial court.

In the instant case, it is not in dispute that before the ruling leading to this appeal, the prosecution had closed its case and had, in the process of establishing its case, called witnesses viz PW1-PW11 and tendered about 69 Exhibits in seeking to prove

the guilt of the Appellant in relation to the information brought against him.

Now Section 251 of the 1999 Constitution (as amended) states:

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

(a) relating to the revenue of the government of the federation in which the said government or any organ thereof or a person suing or being sued on behalf of the said government is a party;

…

(g) any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluents and on such other inland waterway as may be designated by any enactment to be an international waterway, all Federal ports, (including the Constitution and powers of the ports authorities for Federal ports) and carriage by sea

…

(s) such other jurisdiction civil or criminal and whether to the exclusion of any

other court or not as may be conferred upon it by an Act of the National Assembly…

…(3) The Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is conferred by subsection (1) of this Section.”

Now, the question that is in controversy is whether in relation to the instant case, only the Federal High Court can entertain the information brought against the Appellant at the trial court. The purport of Section 251(3) is clear and needs not raise any confusion with regards the criminal jurisdiction of the Federal High Court. I think, that by virtue of the provision of Section 251(3), the Federal High Court is imbued and invested with criminal jurisdiction over all matters and causes which the Constitution has conferred civil jurisdiction on it. As learned counsel for the Appellant rightly noted, in determining the purport of Section 251(3), one must not fail to appreciate the fact that the word “also” as used in the provision is in ‘continuation’ of the exclusive jurisdiction already conferred upon

the Federal High Court by Subsection 1 of Section 251. This is a literal interpretation of that provision which is clear enough. Furthermore, there is no mention of the State High Court either directly or indirectly nor is there any contemplation of the State High Court thereunder. It is trite law, based on the principle of “expressio unis exclusio alterius”, that the express and unambiguous mention of one thing in a statutory provision, automatically excludes any other which otherwise would have applied by implication with regard to the same issue. See DONBRAYE & ANOR v. PREYOR & ORS (2014) LPELR-22286; EGEONU v. INEC & ORS (2014) LPELR-22868 (CA). It would then seem that the argument of the learned counsel for the Respondent on this issue is misconceived. The exclusivity of the jurisdiction of the Federal High Court is not limited to the civil aspects of the items listed in Section 251(1); it evidently extends to the criminal jurisdiction of the court in respect thereof. To this extent, I must state that the cases cited by the Respondent’s counsel in support of its argument viz –

DABBOH v. THE STATE (supra); QUEEN v. OWOH (supra); STATE v. WILLIAMS (supra); AKUME v. THE QUEEN (supra); BRONIK MOTORS v. WEMA BANK (supra); MANDARA v. AGF (supra) have no bearing with the issue in this case as they were decided based on the state of the law then.

It is the argument of the Appellant that the each of the counts preferred against the Appellant relates to revenue of the Federal Government of Nigeria; petroleum products or oil mineral (crude); and goods carried or carriage of goods by sea on board ships. This raises the applicability or otherwise of Section 251(1)(a),(g) and (n) on revenue, mines and mineral as well as admiralty matters respectively.

I think it is necessary to reproduce the information (without the particulars) that was preferred against the Appellant. It states:

“Count 1

Conspiracy to obtain property by false pretence contrary to Section 8 and punishable under Section 1 of the Advance Fee Fraud and other Related Offences Act 2006

Count 2

Obtaining property by false pretence contrary to Section 1 of the Advance Fee Fraud and other Related

Offences Act 2006

Count 3

Conspiracy to forge documents contrary to Section 516 of the Criminal Code Cap C17 Vol. 2 Laws of Lagos State 2003

Count 4

Forgery contrary to Section 467(3)(c) of the Criminal Code Cap C17 Vol. 2 Laws of Lagos State 2003

Count 5

Uttering a false document contrary to Section 468 of the Criminal Code Cap C17 Vol. 2 Laws of Lagos State 2003

Count 6

Obtaining property by false pretence contrary to Section 1 of the Advance Fee Fraud and other Related Offences Act 2006

Count 7

Forgery contrary to Section 467(1) of the Criminal Code Cap C17 Vol. 2 Laws of Lagos State 2003

Count 8

Uttering a false document contrary to Section 468 of the Criminal Code Cap C17 Vol. 2 Laws of Lagos State 2003.”

In analyzing whether the issues are on revenue of the Federal government under Section 251(1)(a), it is agreed that it is the subsidy funds that is involved – being funds pulled from the States, Local and Federal Government – but under the control of the Federal Government. But there is no complain about this fund, the only complaint is that the

defendant utilized forged document to collect part of this fund as payment; hence the count is false pretence, uttering, forgery – it has nothing to do with stealing, tampering or non-payment of revenue funds- “Revenue is money paid in”. On the issue of oil under Section 251(1)(n), the oil in this section refers to ‘oil fields, oil mining and crude oil’ and not Premium Motor Spirit (PMS), the product in this matter. The PMS is the one refined abroad; I do not think it has anything to do with the exploration. Furthermore, there is also no complaint on the quality of oil or the source, oil mining operation, oil pollution, oil pipeline or spillage. The importation was not between the Appellant and the Federal Government. The Appellant was merely given a licence to bring in P.M.S and in doing this, then the difference in landing cost and market price to be sold will be paid as subsidy to the Appellant. Therefore, I disagree that it has anything to do with Section 251(1)(n) of the Constitution.

On Admiralty, it is goods carried on board a ship as per oral evidence and exhibits tendered. The goods were carried on board

the ships viz MT Union Brave & MT Madonna. The admiralty jurisdiction of the Federal High Court is provided for in Section 251(1)(g) and Section 1 & 2(1)(a) of the Admiralty Jurisdiction Act 1991.

Section 251(1)(g) states:

(1) Notwithstanding anything to the contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters –

(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party;

…

the ports authorities for Federal ports) and carriage by sea…

Section 1(1)(j) & (2) of the Admiralty Jurisdiction Act provides thus:

(1) The admiralty Jurisdiction of the Federal High Court (in this Act referred to as “the court”) includes the following, that is-

…

(j) Any criminal cause and matter arising out of or concerned with any of the matters in respect of which jurisdiction is conferred by paragraphs (a) to (i) of this subsection

(2) The admiralty jurisdiction of the court in respect of carriage and delivery of goods extends from the time the goods are placed on board a ship for the purpose of shipping to the time the goods are delivered to the consignee or whoever is to receive them, whether the goods were transported on land during the process or not.

In PETRO JESSICA & ANOR v. LEVENTIST TECHNICAL CO. LTD (1992) NWLR (Pt. 244) 675, the Supreme Court, PER BELGORE JSC held:

“It is settled that once a cargo has been discharged from the

vessel, carriage by sea, admiralty jurisdiction ends”

Again the Learned Jurist stated:

“the law governing the admiralty jurisdiction of the Federal High Court is the Administration of Justice Act 1956 supra and if there is any claim arising after the termination of agreement between the shippers and consignee, it will be over stretching the puppet of Section 1(1)(h) of the Act to interpret the provision of a contract thereafter as that in admiralty. Once the cargos has unloaded from the ship and received into the warehouse without any loss or blemish, the shippers’ obligation terminates and what follows is mere contract not matter in admiralty.”

See also AMERICA INTERNATIONAL INC. v. CEEKAY TRADERS LTD (1981) 5 S.C 50.

“On what does the jurisdiction of the

admiralty court depend? It does not depend on the fact that something has taken place on the high sea. That it happened there is no doubt, irrespective of statute, a necessary condition for the jurisdiction of the Admiralty Court, but there is the further question, what is the subject matter of that what has happened on the high sea? It is not everything which take place on the high sea which is within the jurisdiction of the admiralty court… You have to consider three things – the locality, the subject matter of complaint and the person with regard to whom the complaint is made…”

In applying this guideline to this case, the subject matter is the documents that were allegedly uttered/forged, and used under pretence to obtain money for what was not supplied. The product had been discharged in tank farms fully; there is no complaint of loss or on damage. Nothing happened in the high sea! It is merely a complaint that what was paid for was not what was supplied, simple! Upon the above analysis, it is clear that the admiralty jurisdiction of the court has not arisen.

?In

PACERS MULTI-DYNAMICS LTD v. THE M.V ‘DANCING SISTER’ & ANOR (2012) LPELR-7848 SC, PER NGWUTA, JSC RELYING ON BRAWAL SHIPPING NIG LTD v. APHRODITE (NIG.) LTD (2004) 9 NWLR (Pt. 879) 462, M.N.S. LTD v. JP ENTERPRISES LTD (2006) 5 NWLR (Pt. 972) 172 stated that the rule is that the admiralty jurisdiction of the Federal High Court cannot be invoked once the goods on board a ship have been discharged on the harbour or delivered to the point of destination of the cargo. See TEXACO OVERSEAS PETROLEUM CO. LTD. v. PEDMAR NIG. LTD (2002) 13 NWLR (Pt. 785) 526, where PER EJIWUNMI, JSC held:

“The mere fact that goods at one stage in their movement had a voyage on a ship is not ipso facto giving rise to jurisdiction in Admiralty for cargo already discharged and only to be collected by the consignee or his agent.”

The point, I have been trying to make is that, from whatever angle this matter is examined, it is not within the Federal High Court’s Jurisdiction.

The learned trial Judge struck out Section

19 of the Admiralty Jurisdiction Act 1991. The Admiralty Jurisdiction Act 1991 is an existing law which by virtue of Section 315(1) of the 1999 Constitution is recognized. The 1999 Constitution took into account this law when it provided for the admiralty jurisdiction therefore it cannot be correct that Section 19 is contrary to the intendment of Section 251(1)(3) of the 1999 Constitution. It recognises the criminal jurisdiction in admiralty cases.

The history of admiralty jurisdiction was adumbrated in ALUMINIUM MANUFACTURING COMPANY NIGERIA LTD v. NPA (supra), PER OBASEKI, JSC stated thus:

“What is admiralty jurisdiction? The origin of the admiralty jurisdiction in England can be traced to ancient times. The jurisdiction of the admiralty court in respect of offences committed upon the high seas is rooted in ancient times.

As a result of possessing this criminal jurisdiction, the court of the Lord High Admiral began to hear disputes also in all civil matters connected with the sea and gradually usurped the jurisdiction of the common law court in matters

arising in inland tidal waters, in consequence of which two statutes were passed in the reign of Richard II confining the jurisdiction of the admirals and their deputies to things done upon the sea and in the main stream of great rivers to the seaward side of the bridge.

The civil jurisdiction of the Admiralty Court continued within the limits laid down by the statute of Richard II, but its exercise involved the Admiralty Court in a long struggle with the superior courts of common law. The Admiralty Court asserted the highest and fullest jurisdiction over everything which might happen upon the high seas, but it was obliged to give way to the common law courts and ceased to exercise jurisdiction to the full extent which it had formerly claimed. See Halsbury Laws of England Vol. 1 paragraph 301 page 208. See R. v. City of London Court Judge and Payne (1892) 10.B. 273 at 292-294 CA per Lord Esher, M.R.”

A correct interpretation is therefore a combined reading of Section 19 of the Admiralty Jurisdiction Act and Section 251(3) of the Constitution on the admiralty jurisdiction of the Federal High Court. The

Learned trial Judge having held that it was not an admiralty matter before striking down Section 19 of the Act, there was therefore no need for the “striking down”, especially as it did not affect the jurisdiction of the State High Court with regards to this case in her findings.

Furthermore, this was done by the court suo moto which violates the principle of fair hearing. See KATTO v. CBN (1991) 9 NWLR (Pt. 214) 126; OLORIODE v. OYEBI (1984) 5 SC 1 AT 32-33; EZOMO v. OYAKHIRE (1985) 2 SC 260 AT 282; OLOBA v. AKEEJA (1988) 3 NWLR (Pt. 84) 508 AT 520.

Counsel were not invited to address the court before the striking down was done. It was done from the “blues” so to speak.

Therefore, it cannot be allowed to stand, In this regard, I set aside that part of the decision striking down Section 19 of the Admiralty Jurisdiction Act 1991.

?On the other hand, the trial Judge rightly held that from the information and the evidence adduced in support thereof, the objective and reasonable conclusion to be reached is that the information is

based on allegations of obtaining goods by false pretences, forgery, uttering and some conspiracy offences. I think it is of no moment that the alleged forged document is a shipping document. What the court is being called upon to determine is whether the Appellant has in fact obtained money by false pretence, forged and/or uttered documents in order to achieve this purpose. For the purpose of determining whether or not the trial court can exercise jurisdiction especially as it affects the instant case, the character of the document is immaterial. See EZE v. FRN (1987) 1 NWLR (Pt. 51) 506 (SC) particularly the dictum of NIKI TOBI, JSC thus:

“What really was the complaint against the appellant? It is uttering a false document. If any person knowingly and fraudulently utters a false document, he commits an offence under Section 468 of the Criminal Code. The nature of the document forged or falsified may go to punishments but it is otherwise immaterial to the offence disclosed… In other words, in determining jurisdiction in regard to the offence or offences charged in the information, the character and nature of

the document alleged to be falsified and uttered is irrelevant. But in determining the punishment then the nature and the character of punishment become most material.”

The complaint herein is limited to forgery, uttering a document and obtaining under false pretence, the character of the document is not relevant except to determine the punishment.

The issue to be settled is whether the State or Federal High Court has jurisdiction as defined in the recent case of TALAL AHMED RODA v. F.R.N. (UNREPORTED) SC NO. 418/2015 delivered on 30th Jan, 2015 listed as No. 14 in Appellant’s list of additional authorities. At page 30 thereof, PER DATTIJO MOHAMMED, JSC held:

“where an objection around the criminal jurisdiction of a court may be determined by reference to the charge above in appropriate case. It may be necessary to lead some evidence before it becomes clear enough to make a decision on the point.”

At page 12, he had held:

“Jurisdiction is to a court what a gate is to a premises or a door to a house. It remains the nerve centre of adjudication and the blood that gives life to the survival of an action in a court of

law. Jurisdiction is so fundamental that it robs on the competency of a court to have and decide a case.”

In determining the true meaning and import of Section 251(3) of the Constitution at this stage, I am mindful of the decision of the Court of Appeal in MOMODU v. STATE (2007) LPELR-8380 (CA), (Court of Appeal, Ilorin Division) delivered on 22nd November, 2007 and EHINDERO v. FRN (2014) 10 NWLR (Pt. 1415) 281 (Court of Appeal, Abuja Division) delivered on 14th February, 2014 on the position that Section 251(3) of the Constitution does not confer exclusive criminal jurisdiction on the Federal High Court as well as AMIWERO v. FRN CA/L/317/2013 (Court of Appeal, Lagos Division) delivered on 30th May, 2014 where OSEJI, JCA held that the section confers exclusive jurisdiction on Federal High Court in respect of the items in that section. With all the above decisions at the back of my mind, I shall examine the true meaning of Section 251(3) of the Constitution earlier reproduced.

I am also mindful of the case of EZE v. FRN (Supra) and find that all the Supreme Court Justices agreed that the Section 7(3) of the Federal High Court Act which is in pari

material with the Section 251(3) conferred limited jurisdiction in criminal matters pertaining to the items in Section 251(1) which has exclusive jurisdiction.

In EZE v. FRN (Supra), the Supreme Court held:

“a full court of seven Justices considered the jurisdiction of the Federal High Court in Criminal proceedings in Mandara’s case (supra) and held that Section 7(3) of the Federal High Court Act 1973 merely amplifies subsection 2 thereof and does not create any additional jurisdiction thereto and that the phrase “offences under the provision of the Criminal Code in Section 7(3) means the offences under the code which relate to the matters set out in Section 7(1) of the Act”

The underlying concept was aptly expressed by Sowemimo C.J.N. in his obiter dictum namely: 7. “As the former name of the court is restricted the Federal Revenue Court, although changed to Federal High Court, its jurisdiction is set out in subsection (1) of Section 7 has never been altered. All criminal matters in that court has jurisdiction to deal with under sub-Section (3) must be within the compass of section 1 …it is the duty of our courts to observe the different

jurisdiction which are imposed on these courts.” ……8 Section 7(3) of the Act No. 13 of 1973 did not confer an additional Jurisdiction on the Federal High Court but rather it merely amplified Section 7(2) which itself relates back to Section 7(1)…”

The above spells out the fact that there has been no conflict or confusion until recent times over what exactly is exclusive to the Federal High Court. The intention of the establishment of the court was to ensure expeditious despatch and disposal of cases involving the revenue of Federal Government and taxes.

A careful reading of Section 251(1) reveals that the use of “notwithstanding” makes it cogent irrespective of all other legislation in this Constitution and Section 251(2) – uses “shall’ for the Court’s mandatory jurisdiction in respect of treason while in Section 251(3) refers to “also” means “continuing, in conjunction” and its used “shall” mandatorily together with the word “also” which connotes a continuation of what has already been given and also in conjunction and relates it to sub-section (1) of 251 of the Constitution.

There is therefore the need for an apt understanding of the

intention of the drafters and the constructive interpretation of this section so as not to destroy the original intention of the , it ties Section 251(1) and (3) together in its meaning to give it an exclusive jurisdiction in both civil & criminal matters over 251(1)(a) – (s) therein which involves Federal matters. It also ties it to the foundation of the Federal High Court (Federal Revenue Court) to have jurisdiction over revenue matters which metamorphosed into Federal matters.

A cursory look at the Exclusive Legislative list in Part One of Second Schedule, Items 33 and 61 reveals that those matters are only relevant to State High Courts while Item 34 is now for the National Industrial Court, while Item 35 is for Supreme Court. These are the only items wherein the Federal High Court does NOT have jurisdiction under Section 251(1)(a) – (s) of the Constitution to adjudicate upon. It has the Items 1-32, 45-60, 62 – end which are covered by Section 251(1)(a) – (s) of the Constitution.

Therefore it is very safe to say that as at today, the Federal High Court only entertains Federal matters in Section 251(1)(a) – (s) exclusively

together with Section 251(3) which is also exclusive to it. To say that the State High Court has concurrent jurisdiction is to violently hinder the intention of the drafters of the Constitution and create confusion as to separation of courts.The fact that the word “exclusive” is missing does not transform it to a concurrent jurisdiction provision.The repeat of the word in the drafting will result in the repetition when (it is) used in the same subsection. To this extent,I am of the view that the decision of this court expressed by PER OSEJI in AMIWERO v. FRN(Supra),which no doubt is later in time,represents the correct interpretation and position of law.

On the whole,I am unable to view to view that the matters herein are within the jurisdiction of the Federal High Court.

It is simply a criminal matter on the offences committed on documents allegedly uttered, forged and false pretence under the State Criminal Code and not Federal.

KARIBI-WHYTE, JSC held in EZE v. FRN (supra),

“… I entirely agree with the conclusion, on the summary counts of two courts, that the document relied upon in this case, is only relevant for the determination whether an offence or what offence has been committed. It may be relevant for determining the jurisdiction of the court if the offence disclosed is one within the jurisdiction of the court. In this case, where the complaint against the document is that it is forged, that is the complaint that is relevant for the purpose of the jurisdiction of the court. If the forgery is for the evading of customs duty, then it is the Federal High Court … Otherwise as in this case, where the issue of evasion of payment of customs duties did not arise and was not an issue then it is not a matter

within the jurisdiction of the Federal High Court…”

The above shows that the Supreme Court recognized the extent of the criminal jurisdiction as it pertains to the items where the Federal High Court has been conferred jurisdiction and that when the matter is on criminal offences under the Criminal Code, the State High Court has jurisdiction.

In conclusion, the complaint in this matter at hand, is that documents were allegedly uttered and forged under false pretence for the purpose of illegally collecting payment under Section 419 of the Advance Fee Fraud and Other Fraud Related Offences, and the State Criminal Code and therefore not under the Federal High Court Act. It is merely upon the documents used to collect money allegedly forged and uttered; not the character of evidence or exhibits used in proof of evidence.

I resolve this issue in favour of the Respondents.

Code and therefore not under the Federal High Court Act. It is merely upon the documents used to collect money allegedly forged and uttered; not the character of evidence or exhibits used in proof of evidence.

I resolve this issue in favour of the Respondents.

ON ISSUE 2

Olanipekun, SAN, contended that the Respondent had not proved a prime facie case against the Appellant. He referred to Section 36(5) of 1999 Constitution, Section 135 of Evidence Act and stated that exhibits P39, P40 and P41 (extra judicial statement of 3rd defendant) and exhibits P42, P43, P44, & P45 of 4th defendant are to the effect that the 3rd & 4th defendant carried out their duties with respect to verification of the observed volume and quantity of petroleum products imported and discharged into tank farm facilities of Obat Petroleum & Integrated Oil & Gas Tank Farm facilities respectively without any form of influence.

On ingredients of conspiracy, relying on the following cases IKWUNNE v. STATE (2000) 5 NWLR (Pt. 658) 550 AT 561, R. v. CLAYTON (1943) 33 CR APP. 113, KENNETH CLARK & ANOR v. THE STATE (1986) 4 NWLR (Pt. 35) 381 AT 315; MUMUNI

v. STATE (1975) 6 SC 79; DABOH v. STATE (1979) 5 SC 197; AITUMA v. STATE (2006) ALL FWLR (Pt. 318) PAGE 671 AT 689; ABUBAKAR v. A-G FED (2009) ALL NWLR (Pt. 441) 870; AYO v. STATE (2010) ALL FWLR (Pt. 530) 1377 AT 1400, Counsel argued that there was no direct or circumstantial evidence to establish that the 3rd & 4th met or agreed at any time with the 1st 2nd & 5th Defendant or concluded with them to comprise the performance of the official duties during and after the discharge the petroleum products.

On the offence of obtaining properties by false pretence counts 2, 6 and 9, he referred to MICHEAL JINKA v. C.O.P. (1976) 6 & 7 SC 99 at 102-105. During trial, he said that the Respondent tendered Exhibit P4 & P7 (1) supporting the allegation and the Appellant used Exhibits P5 & P6 showing a larger volume and falsely presents Exhibits P5 & P6 as representations of the actual volume of imparted PMS discharged by the Appellants to prove its innocence. This he said runs fouls of the constitutional provision on the accused presumption of innocence.

On offence of forgery and uttering under Section 467 of Criminal Code, Learned SAN

cited PAM v. MOHAMMED (2008) 1 NWLR (Pt. 1112) 92; IDOWU v. STATE (1988) 11 NWLR (Pt. 574) 354; ALAKE v. STATE (1992) 9 NWLR (Pt. 265) AT 270; SMART v. STATE (1974) NSCC 575 AT 581. He contended that the lower court did not determine whether the Exhibits P5, P6 & P4 & P7 met the provisions of petroleum products for subsidy claims as set out in guidelines issued by PPRA tendered as Exhibits P48 & P4 and that exhibits P4 & P7 are shore tank reports which were not signed by PPRA representative but were wrongly relied on by the lower court; that name of the two surveyor who prepare the report, DPR haulage report and empty tank certificate were said to have been forged throughout the evidence and these are necessary documents for subsidy claims and all the culminated in issuance of shore tank quantity certificates – EXHIBIT P5 & P6 that the 5th Defendants surveyor who superintended over the discharge on behalf of the Appellant, had written a protest letter and also issued a shore tank quantity report evidencing a lower volume than that for which subsidy claims was made Exhibit P5 and there was evidential burden on Respondent not to call

as a witness a member of staff of the survey company that acted for the Appellant during the discharge. He said that there was a protest letter attached to Exhibit P2 which was discredited.

Further, that the sum paid for storage of the PMS in the tank farm facility relied upon by the lower court as a basis for refusing the no case submission was discredited during the cross examination. He submitted that it is only a member of staff for finance department of PW3’s company that could give a definite response to the financial position of payment made vis-a-vis the quantity stated in the contracted document executed between parties. That there were inconsistencies on the actual volume of litres supplied based on the evidence of PW3 & PW7. He further submitted that Exhibit P5 was not signed by the surveyor to the depot owners and was rejected by the lower court while the same court accepted Exhibit P4 which was not signed by the surveyor.

On count 6 & 7, he drew attention to Exhibit P58 – “The through put agreement” executed between Appellant and Obat Oil & Petroleum for storage of 15,000 metric tonnes of PMS which was contrary to PW4

& PW6’s testimony and that Obat Petroleum never issued Exhibit P6 used to apply for subsidy claims and defence counsel tendered Exhibit P9 through PW1 on the transaction which was contrary to PW4 & PW6’s position and indicated that a shore tank certificate prepared by the Appellant’s surveyors that is, Integrated Marine & Petroleum Solution Ltd. and Obat Petroleum that 19,523,892 million litres of PMS was discharged by M. T. Madannol on 14/11/2010. That the lower court instead of seeing whether all?ingredients of the offence have been proved or established said there was some evidence linking 1st, 2nd, & 5th defendant to the transaction conducted on behalf of 5th Defendants.

That Section 239 of Administration of Criminal Justice Law of Lagos State 2011 ought to have been struck out for being inconsistent with Section 36 (5) of Constitution. He referred to ODIDO v. STATE (1995) 1 NWLR (Pt. 369) 88 AT 113.

That no witness identified the signature and writing of Appellant on any of the exhibits tendered by the prosecution. On the contradiction in the testimony of the prosecutor’s witness, he said there were inherent contradiction in the

testimonies of Pw1, Pw3, Pw4, Pw7 & Pw10 on different figures of what the tank could contain and that of Obat Oil Integrated Oil respectively were also discredited during cross examination and that the loading tickets issued to the trucks that loaded and carried out PMS which were used to input data contained in Ex p59 was not made available to EFCC during investigation nor tendered or produced. He relied on AJOSE v. F.R.N. (2011) 6 NWLR (Pt. 1244) 465 at 476 C-D, UNIPETROL (NIG) PLC v.?ADREJA (WA) LTD (2005) 14 NWLR (Pt. 946) 563 AT 605; ODI v. IYALA (2004) 8 NWLR (Pt. 873) 283; UBANI v. STATE (2003) 4 NWLR (Pt. 809) 51 AT 62; OTI v. STATE (2000) 8 NWLR (Pt. 207) 103; OPEYEMI v. STATE (1985) 2 NWLR (Pt. 5) 101; IBRAHIM v. STATE (1991) 4 NWLR (Pt. 168) 399 AT 415.

Learned SAN stated that Pw2 testified that Ontario’s product was 12 million litres of PMS and no more under cross examination on 30/7/13. Used tickets were not produced and that p21 and p51 ought to be discountenanced by the court. He asked the court to invoke Section 167(d) of the Evidence Act. He cited JALL CO. LTD. v. OWONIBOYS TECHNICAL SERVICES LTD (1999) 4 NWLR (Pt. 891) 534.

referred to Exhibits 67 and 68 at pages 656-675 ctc of exhibit tendered and that it shows that 5th Defendant has a pending action in suit FHC/L/CS/99/2012 ONTARIO OIL & GAS v. VESSEL MT UTRI & ANOR. (OBAT) for delivery of 8,653, 954, 1815 litres PMS or alternately payment of the sum of N277,060,685.62 value of litres PMS that got missing while the depot of OBAT OIL & GAS LTD. Exhibit P68 indicates 5th Defendant got a warrant of arrest and it makes PW4 at best attained and interested witness. He relied on ISHOLA v. STATE (1979) 6-10 SC 81 AT 100; IFEAJUNA v. IFEAJUNA (1997) 7 NWLR (Pt. 513) 483; ITHMB v. ALUKO (1992) 4 NWLR (Pt. 235) 267; UDO v. ESHIET (1994) 8 NWLR (Pt. 513) 408.

Finally on hearsay evidence of the prosecution witness he submitted that their evidence was largely hearsay contrary to Section 38 of Evidence Act 2011. He relied on GABRIEL v. STATE (2010) 6 NWLR (Pt. 1190) 280 AT 323; OKHUAROBO v. AIGIE (2002) 9 NWLR (Pt. 771) 29 at 70; ASAKE v. NIG. ARMY COUNCIL (2007) 1 NWLR (Pt. 1019) 408 at 416; OMOGE v. STATE (2006) 14 NWLR (Pt. 1000) 532 at 539 and OGUDE v. IGP (1969) 1 ANLR 102.

Respondent submitted that Section 239

& 240 of the ACJL No. 10 of 2010 constitutes the basis for a no case submission he referred to AJIDAGBA v. IGP (1958) SCNLR 60; at 62. EKWEUGO v. FEDERAL REPUBLIC OF NIGERIA (2008) 15 NWLR (Pt. 1111) 638-639; TANGO v. C.O.P. (2007) 12 NWLR (1049) 525, DABOH v. STATE (1977) 5 SC 197; OLANIYAN v. STATE (1987) 1 NWLR (Pt. 48) 156; STATE v. EMEDO (2001) 12 NWLR (Pt. 726) 131, ADEYEMI v. STATE (1991) 6 NWLR (Pt. 195) 1, AJULUCHUKWU v. STATE (2014) 13 NWLR (Pt. 1425) 641 AT 657. He maintained that a prima facie case had been made out, on offence against the Appellant and other he reviewed each substantive offences and the evidence adduced. On obtaining false pretence he stated that he reviewed the evidence adduced on pages 1979-1981 of the records and that it summarized facts that the representative Appellant and 2nd & 5th Defendants discharged 19,327,460 litres of PMS into Integrated Oil & Gas Ltd tank farm as per Exhibits P5 & P21 and this is not contested by Appellant he said there was more ample pieces of evidence to support fact.

That the two surveyors employed to ascertain the exact quantity of petrol delivered and discharged had agreed

to a provisional figure of 12,070,706 litres was prepared separately. That there was no conflict on the figure as there was enough facts showing that correct shore quantity certificate issued by Gentec Marine Services, while the one used to claim subsidy had a figure of 19,681,731 litres it was unsigned by Gentec Marine Services Ltd – at page 55 Vol. 1 of supplementary records and other testimonies of Pw10 and Pw11 support the contention that 12,070,706 litres were discharged.

He referred to Exhibit P71 a protest statement of the ship master coupled with evidence that Ontario Gas Ltd wrote a protest letter, Respondent said this was supported by Pw10 and Pw11 who was present at the port of discharge and that the shortage was still 619,756 litres and that Exhibit P20 showed an additional 400,00 litres was to be remitted to make a balance of 12.4 million litres which is still not what Appellant was paid for.

On the effect of appellant’s payment to the depot owner as ‘through put’ fee of N37,408,171. Pw2 stated that it translated to 12,470,706 litres as the agreed amount and Pw2 corroborated same.

He referred to cheque payments annexed to Ex P23

which amounted to N36,212,118 Naira and translated to 12,070,706 litres before the addition of 400,000 litres. He relied on SOLEH v. BON LTD (2006) 6 NWLR (Pt. 976) 316; OKPOKO COMMERCE BANK LTD v. IGWE (2013) 15 NWLR (Pt. 1376) 167. Counsel stated that Pw3 explained the reason for the repetition and mix-up in Exhibit P31 and this was corroborated by Pw10. Counsel submitted that Evidence of Pw10 sufficiently explained the none production of the tickets and there was sufficient materials to show the maximum capacity of Integrated Oil & Gas Ltd to be 16.5 million per Pw1, Pw3 and Pw10 and that the evidence was unshakeable materially.

On the Exhibit P5 that was not signed, Respondent contended that Appellant does not deny this fact but that the learned trial Judge ought not to have overruled him. The Respondent submitted further that the shore tank quantity prepared by MG Inspections Ltd. of the Appellant’s is also attached to Exhibit P21 and is the same quantity, quoted as Gentec Marine services Ltd and that Appellant generated with other Defendants. Exhibit P8 and the higher subsidy and that presumption of regularity of Exhibit P5 was misplaced.

Respondent further agreed that Pw3 denied Exhibit P5 and that his assistant signed it, but that he is the deputy manager and the rule is that it’s only when he is not available that his deputy can sign but that he was present on that day but did not know about Exhibit P5 until EFCC brought it to their attention that there were 2 certificates.

On the second transaction Respondent submitted that Obat Petroleum & Oil Ltd denied recovery or storing 19,529,892 litres. – Exhibit P6 A, but confirmed cargo of 10,010,094 litres and in evidence by Pw6 – Surveyor with Obat and rejected Exhibit P9.

In respect of Obat counsel stated that relevant evidence of payment for only 10,010,094 litres discharged and stored in Obat Tank farm, by cheques – 3 in Numbers amounted to N28,250,594.00.

He submitted that witnesses testified that tanks 3, 4 and 9 of Obat Oil depot could not have possibly taken the entire product. He referred to Exhibits P24 A1, Exhibit P62, P63, and Exhibit P64 to demonstrate that over 19,000,000 litres of PMS at the same time could not be discharged and that Exhibit P58 cannot help the Appellant case.

On the truck out was not more

than 10,010,094 litres, he referred to Pw6 truck officer evidence, and no witness gave any evidence of loading ticket in Obat Oil & Gas transaction.

On the count of forgery & conspiracy, Rotimi Jacobs, SAN submitted that the charge was under Section 467 (3)(c) of Criminal Code Law of Lagos State and listed proof thereof he relied on AWOBUTU v. STATE (1976) 5 SC, SMART v. STATE (1974) 11 SC 123; ALAKE v. STATE (1991) 7 NWLR (Pt. 205) 567; UKPE v. STATE (2001) 18 WRN 84; SHERIFF v. IMMAM (2005) 4 NWLR (Pt. 914) 162.

That the documents allegedly forged are: (1) Share Quantity Certificate – 19,681,731; (2) Share quantity Certificate for 19,53,862 and (3) Certificates credited to Obat & Integrated Oil & Gas were denied by the companies. There was abundant evidence that only parties facilitated the forgery of the share tank certificates. That the documents did not meet the requirements as Exhibit P58 had no signature of any Gantec surveyor, only a stamp of PPPRA no signature or name thereon.

On Uttering & Conspiracy count under Section 468 of the Criminal Code, he contended that the Pw1, Pw2, Pw5, Pw6 and Pw12 showed that

Exhibit P8 and Exhibit P9 submitted by Appellant together with shore tank certificate to PPR were uttered and forged.

On Conspiracy he relied on YAKUBU v. STATE (2012) 12 NWLR (1313) 131 at 142; MOHAMMED v. STATE (1991) 5 NWLR (Pt. 192); IDE v. STATE (1994) 8 NLWR (Pt. 365) 719.

Counsel referred to evidence of meeting of minds to do which is unlawful and evidence of agreement by all of them and the common objective was to receive a higher subsidy from government by inflating the quantity of PMS actually discharged into depots. He relied on AGUNA v. A-G FEDERATION (1969) 5 NWLR (Pt. 396) 416; AGBEGEBE v. IGP 15 WACA 37 & 38; IKWUNNE v. STATE (2000) 5 NWLR (Pt. 658).

He contended that Appellant moved the money collected from Central Bank into another account and he is the chairman of the Defendant, that his name was not mentioned in the extra judicial statement is not important.

On the interest of Pw4 as an employee of Obat Oil & Gas as interested party, he relied on WD Ltd v. OJIBO (1992) 5 NWLR (Pt. 239) 77; NSIT FMB v. KUFCO (2010) 12 NWLR (Pt. 1211).

He submitted that the Obat Oil Gas is not a party to the criminal

proceedings and the evidence of Pw11?are not hearsay as they are evidence of companies that participated in the transaction. He cited UGWUMBA v. STATE (1993) 5 NWLR (Pt. 296) 660.

EKPO v. STATE (2007) 7 NWLR (Pt. 712) 292; KETER ENTERPRISES LTD v. DAEWOO (NIG.) LTD; ISHADE v. SOCIETE GENERALE BANK LTD; SOLEH v. BON LTD; GABRIEL v. STATE (2010) 6 NWLR (Pt. 1190) 280.

He urged the court to reject the contention of the Appellant on issue of hearsay evidence.

The Appellant in reply submitted that Respondent had evaded the salient and fundamental issues to the effect that no ingredient of any offence has been proved or made against the Appellant. It presupposes that no case was made against him as at the time of arraignment. He relied on PEOPLE OF LAGOS STATE v. UMARU (2014) ALL FWLR (Pt. 737) 676; ONAGORUWA v. STATE (1993) 7 NWLR (Pt. 303) 49; AKILU v. FAWEHINMI (NO. 2) (1989) 2 NWLR (Pt. 102) 122, ATOLAGBE v. AWUNI (1997) 9 NWLR (Pt. 522) 536.

The grouse of the Appellant in this issue is that, the evidence adduced by the plaintiff did not satisfy the requirement of the law which relates to establishing the ingredients of an offence.

The proof of evidence discloses a prima facie case when it is such that if un-contradicted and if believed, will be sufficient to prove the case against the accused and where there is ground to proceed, it is said that a prima facie case has been established. See UGBANE v. F.R.N. (2010) LPELR-4945 and OKORO v. STATE (1988) 5 NWLR (Pt. 94) 225. Generally, there must be evidence linking the accused to the alleged crime in such a way that an explanation is required.

At this stage, it is not evidence to convict but to call for explanation from the accused. The question is whether from the proof of evidence a prima facie case is made out?

Prima facie case has been defined in plethora of cases. In SALZGITTER STAHL GMBH v. TUNJI DOSUNMU INDUSTRIES LTD (2010) 11 NWLR (Pt. 1206) 589, the Supreme Court states thus:

“Simply put the phrase i.e. “prima facie” (which applies as a rule of onus of proof in the law of evidence) means as per evidence which if accepted, appears to be sufficient to establish a fact or sustain a Judgment unless rebutted by acceptable evidence to the contrary. In other words, it is not conclusive. It is evidence (as distinct from

proof) that is, on the first appearance. The phrase “prima facie” when it is used in the con of such matters signifies that at the close of the plaintiff’s case, the case is not sufficient; that is to say where the plaintiff fails to lead factual evidence or legal grounds. See DURU v. NWOSU (1989) 4 NWLR (Pt. 113) 23 AT 41, and AROMIRE v. AWOYEMI (1972) 2 SC 1. In such cases, the Court does not take into account at that stage the evidence called for the defence…”

“To prove conspiracy, the prosecutor must prove the following:-

i. An agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.

ii. Where the agreement is other then an agreement to commit an offence that some act besides the agreement was done by one or more of the parties in furtherance of the agreement.

iii. Specifically that each of the accused persons individually

participated in the conspiracy.”

?It is settled law that conspiracy is seldom proved by direct evidence but by circumstantial evidence. The actual agreement alone constitutes the offence and it is not necessary to prove that the act has in fact been committed. See YAKUBU v. STATE (supra); OBIAKOR v. THE STATE (2002) 6 SC (Pt. II) 33 AT 39-40. In an offence of conspiracy, at least two persons are required to enter into an agreement to an unlawful act; one person cannot conspire with himself. The agreement between them is the consent to carry out the unlawful act or lawful act in an unlawful way. Their covert act must have been translated into an overt act.

On the offence of forgery and uttering of a false document, what the prosecution needs to prove is as stated in ODIAWA v. FRN (2008) LPELR-4230 (CA); ALAKE v. STATE (1991) 7 NWLR (Pt. 205) 56 thus:

“The offences of forgery and uttering have been defined in Section 467(2) (c) of the Criminal Code. Their ingredients are:

a. That the accused utters or forges a document.

b. That he knew the document to be false.

c. That he presented the said document to the other party with the

intention that it could be acted upon.

d. That the document was acted upon by the other party to his detriment (the 4th ingredient is not always necessary to prove once the other 3 have been established).

?In AGUBA v. F.R.N. (2014) LPELR-23211, this Court held that the offence of obtaining property by false pretences could be committed in writing, or even by mere oral communication of the accused person. See AMADI v. F.R.N. (2008) 18 NWLR (Pt. 1119) 259; ONWUDIWE v. F.R.N. (2006) 10 NWLR (988) 382; OSHIN v. IGP (1961) 1 SCNLR 40 where the court listed the ingredients of obtaining by false pretence thus: (a) that there was a pretence; (b) that the pretence emanated from the Defendants (c) that it was false; (d) that the Defendants knew of the falsity or did not believe in its truth; (e) that there

was an intention to defraud; (f) that the thing is capable of being stolen and (g) that the Defendants induced the owner to transfer the property.

?The Supreme Court held in TONGO v. C.O.P. (2007) 12 NWLR (1049) 525 thus:

“In Daboh & Anor v. State (1977) 5 SC 197 at 209 this Court per Udoma, JSC discussed when a no-case submission may be held:

Before, however, embarking upon such an exercise, it fu perhaps expedient here to observe that it is a well known rule of criminal practice, that in a criminal practice, that in a criminal trial at the close of the case for the prosecution, a submission of no prima facie case to answer made on behalf of an accused person postulates one of two things or both of them at once. Firstly, such a submission postulates that there has been throughout the trial no legally admissible evidence at all against the accused person on behalf of whom the submission has been made linking him in any way with the commission has been made linking him in any way with the commission of the offence with which he has been charged, which would necessitate his being called upon for his defence. Secondly, as has been so

eloquently submitted by Chief Awolowo, that whatever evidence there was which might have linked the accused person with the offence has been so discredited that no reasonable court can be called upon to act on it as establishing criminal guilt in the accused person concerned; and in the case of a trial by Jury, that the case ought therefore to be withdrawn from the jury and ought not to go to them for a verdict.” (Underlining mine).

If the evidence laid before the court is such that a reasonable court or tribunal might convict on it, then there is a case to answer. See MOHAMMED v. THE STATE (2007) 7 NWLR (Pt. 1032) 152 SC.

I will reproduce the evidence points adduced by the prosecution (relating to the two transactions involving importation of petrol under the PSF Scheme) as set out by the trial Judge on pages 1979-1982 of the record. With respect to the first transaction, these are:

a. There is evidence that the 1st, 2nd and 5th Defendants forwarded to the government, a claim for subsidy on the basis that the vessel that transported the petrol, MT Union Brave, discharged 19,327,460 litres of it into storage tanks belonging to Integrated Oil

and Gas Limited (the owner of the depot at which the tanks were situated).

b. There is evidence that this claim for subsidy was based on the Shore Tank Certificate that is among the sheaf of papers in Exhibit P8 (pages 39 and 40 thereof), and which certificate is also Exhibit P5 before the court.

c. There is evidence to the effect that the government, relying on this certificate, paid to the 5th Defendant, the sum of N942,627,047.70k as subsidy for the third quarter of the year 2010 importation.

d. There is evidence that the two surveyors employed to ascertain the exact quantity of petrol that was delivered and discharged (Gentec Marine Services Limited for the depot owner, and MGI Inspection Limited for the 5th Defendant) had agreed to a provisional figure of 12,070,706 litres as the actual quantity that was discharged.

e. There is evidence that the 5th Defendant’s surveyors, MGI Inspections Limited, had written a protest letter claiming that the actual quantity discharged was 12,695,390 litres of petrol.

f. There is evidence that suggests that the 5th Defendant and the depot owner met end resolved the controversy, with them both

agreeing on the quantity of 12,470,706 litres as what had been discharged.

g. There is evidence to the effect that the 5th Defendant paid to the depot owner the sum of N37,408,171.00k as Through Put Fees, calculated on the basis of the discharge of 12,470,706 litre of petrol at the tank farm.

h. There is evidence to the effect that 12,494,000 litres of petrol were later trucked out of the storage facility by the 5th Defendant.

i. There is evidence that suggests that the storage facility in question (belonging to Integrated Oil & Gas Limited) had a maximum capacity of 16,500,000 litres.

j. There is evidence suggesting that Exhibit P5, containing a figure of 19,681,731 litre as what was discharged and stored in the tank farm, was not signed by Gentec Marine Services Limited, the depot owner’s surveyor.

k. There is evidence that the said depot owner, Integrated Oil & Gas Limited, denied having been a part of Exhibit P5, stating instead that the actual Shore Quantity Certificate issued for the transaction showed that 12,070,706 litre of petrol was discharged instead.

With respect to the second transaction, the

evidence adduced is as follows:

a. There is evidence that the 1st, 2nd and 5th Defendants forwarded to the government, a claim for subsidy on the basis that the vessel that transported the petrol, MT Madonna I, discharged 19,523,892 litres of petrol into storage tanks belonging to Obat Petroleum & Oil Limited (the owner of the depot).

b. There is evidence that this claim for subsidy was based on the Shore Quantity Report that is among the bundle that is Exhibit P9 (it is page 64 thereof), and which is also Exhibit P6 before the Court.

c. There is evidence to the effect that the government, relying on this certificate, paid to the 5th Defendant, the sun of N863,541,743.16k as subsidy for the fourth quarter of year 2010 importation.

d. There is evidence to the effect that the depot owner, Obat Petroleum & Oil Limited, denied having received and stored the claimed quantity of 19,523,892 litres, and also denied having issued Exhibit P6.

e. There is evidence to the effect that the actual quantity that was discharged was 10,010,094 litres.

f. There is evidence that the 5th Defendant paid to the depot owner an amount of

money calculated on the basis that 10,010,094 litres were discharged and stored.

g. There is evidence that suggests that the relevant storage tanks in the tank farm did not have the capacity to store the quantity of petrol that the 1st, 2nd and 5th Defendants said was kept in each of them.

h. There is evidence that suggests that to more then, 10,010,094 litres of petrol were trucked out.

i. There is evidence that suggests that another shore tank certificate (Exhibit P24A) was the true one, and not Exhibit P6.

The positions of the Defendants are thus: 1st Defendants as executive chairman; 2nd Defendant as managing director managing the day to day affairs of the company; 3rd Defendant is an officer of PPPRA who monitors arrival and discharge of PMS and the 4th Defendant is a partner in the audit firm of Akintola Williams Deloitte, the Federal Government’s External Auditors advises on proper due amount on subsidy to be paid.

The Appellant herein has to answer from the start when put against the prosecutions points highlighted above; on how much PMS he initially requested for from his source of purchase; what was in the tank farm,

what was paid for storage, what documents were presented. This must be clear as the claim that he is a distant person in the company’s affairs (5th defendant) runs contrary to evidence on ground, it was he who pursued the claims as well as moved the money to banks. All these beg for answers.

The allegations of two certificates in existence, evidence of documents was not signed by appropriate officer at point of discharge why was this? Who from the evidence was present. Without judging the outcome of the case at trial at this stage, the Appellant has to defend himself from all innuendoes or implication of omission or commission heavily present in the prosecution’s case. There are clear links which he must defend and clarify.

As earlier stated, evidence will disclose a prima facie case when it is such that if uncontradicted and it believed it will be sufficient to prove the case against the accused. See OHWOVORIOLE v. F.R.N. (2003) 2 NWLR (Pt. 803) 176.

There is a huge pile of evidence on the quantities in each tank farm; it is for the Appellant to state what from his end the correct quantity in the tank farm was and to tell the court if the

documents of the prosecution were in fact what he presented. He has to state what amount was collected as evidence shows document presented, what was paid to him, which tallied with the figures the tank farm could accommodate in the evidence of prosecution.

The court is only called upon to take note and to rule accordingly that there is before the court no legally admissible evidence if indeed this is the position. In my view upon a perusal of evidence contained in the record books, there is legally admissible evidence from the documents presented. It is not for the court at this stage to examine in-depth evidence at this stage but solely to rule if there is any scintilla of evidence linking the accused person. See TOGO & ANOR. v. C.O.P. (2007) 12 NWLR (Pt. 1049) 525; AJIDAGBA v. IGP (1958) SCNLR 60; ABACHA v. STATE (2002) 11 NWLR (Pt. 779) 437. I am of the opinion that the learned trial Judge correctly analysed the evidence established when she called for the defence. There is a ground for proceeding with the case and it can be safely said that a prima facie case has been made. In other words, it may be concluded that something has been produced to

make it worthwhile to continue with the proceedings. See UGBANE v. FRN (2010) LPELR-4945 (CA); DURU v. NWOSU (1984) 1 NWLR (Pt. 113) 24 AT 43; OKORO v. STATE (1988) 5 NWLR (Pt. 94) 225.

On the whole I agree that the learned trial Judge correctly analysed the evidence established and each prosecution witness thoroughly thereby calling for a defence of the case.

I resolve issue 2 in favour of the Respondent

Issue 3

Appellant referred to Section 36 (12) of the 1999 Constitution and relied on the following cases: AOKO v. FAGBEMI & ANOR (1961) 1 ANLR 416; IFEGWU v. FRN (2001) 13 NWLR (Pt. 729) 103 at 131 to contend that the offence is not rooted in any written and subsisting law. That O. O. Fatunde (Mrs.) signed the information when the Criminal Code Law Cap C17 Laws of Lagos State 2003 had been repealed by the 2011 Act. He relied on OLAFISIOYE v. F.R.N. [2004] 4 NWLR (Pt. 864) 580 at 630; BODE GEORGE v. F.R.N. (2014) 5 NWLR (Pt. 1399) 1 to urge the court to hold as argued.

Respondent’s Counsel refuted the Appellant counsel’s argument and contended that the cases cited were inapplicable. He argued that the offences were committed

between July 2010 and November 2010 at the time when the 2003 Criminal Law of Lagos State was in force and that Section 468 of that law accommodated ‘uttering of false document’. He relied on HDP v. OBI [2011] 8 NWLR (Pt. 1278) 80; ALAO v. AKANNI [1988] 1 NWLR (Pt. 71); UWAIFO v. A-G BENDEL (1982) 7 SC 124. He also submitted that Section 6 (1) (b), (c) and (e) of the Interpretation Act, Cap 123 LFN 2004 and under the Laws of Lagos State 2003 suffices to save same. He relied on ABAYE v. OFILI [1986] 1 NWLR (Pt. 15) 134; MADUMERE v. ONUOHA [1999] 8 NWLR (Pt. 615) 422.

This issue deals with in a nutshell whether there was an offence codified as at the time the information was signed and charges filed.

Appellant counsel had contended that indeed there was no law as the Lagos State Criminal Code of Laws of Lagos State had been repealed. On this, he referred to Counts 3-8 of the Criminal Code and contended that Count 5 and 8 is a repetition.

In resolving this, the information reproduced earlier in this judgment from count 3-5, 7 & 8 are for inter alia forgery and uttering a false document contrary to the relevant provisions of the Criminal

Code.

The contention of the Appellant is that he was charged under a repealed law and this render the arraignment as well as the proceedings a nullity given the fact that the offence alleged to have committed was in 2010 July when the Criminal Code Law 2003 had been repealed.

In this regard, Section 158 of the Administration of Justice Law of Lagos State becomes relevant, it states thus:

“No error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or these particulars shall be regarded at any stage of the case as material unless the defendant was in fact misled by such error or omission”.

This is in pari materia with Section 166 of Criminal Procedure Act.

In FRN v. IFEGWU (supra), the Supreme Court held that where no offence known to law is preferred, Section 166 of the CPA cannot be invoked to cure any error or omission arising from the offence since there is no offence.

Where a person is charged for an offence under a wrong to or a non-existent law and there is an extant law which adequately covers that offence, a trial and conviction therefrom shall not be

vitiated by such error or omission as this will amount to standing on the pedestal of technicality to knock justice on the face.

See EGUNJOBI v. F.R.N. [2012] 3 NWLR (Pt. 1342) 534; OLATUNBOSUN v. STATE (2013) 34 WRN 1. In OGBOMOR v. STATE (1985) 1 NWLR (Pt. 2) 223 at 233, the Supreme Court held:

“A combined reading of the provision of Section 33(8) and Section 33(12) of the Constitution 1979 suggest that whereas no person can be tried and convicted of an offence which did not exist at the time of his commission or which is not contained in an existing law, there is constitutional or other prohibition against that and conviction of a person for an offence which is known to the law and is in existence at the time of its commission but the relevant statute of which has been here, incorrectly stated. Thus it is clear that a more misdescription of the law under which a charge is been bought, does not necessarily render the offence charged not known to law at the time of its commission. Hence as long as the offence charged discloses an offence in a written law and such law is in existence at the time of the commission or omission of the act alleged in

the charge was done the information is valid and is merely defective if there is any misdescription of the law under which the charge laid.”

See OKOH v. STATE (2013) LPELR (291009) CA. Even if the Criminal Code Law of Lagos State had been repealed by the Criminal Code Law of 2011, the offence for which the Appellant is standing trial is alleged to have been committed in 2010, the complaint was made in 2010, investigation were therefore carried out after the repeal of the 2003 Act.

This position of the law or actions and or obligation is settled, in that it is a jurisdictional issue; the position is the same for both civil and criminal cases and it is the law in force when a cause of action arose or offence was committed that became the applicable law.

Learned counsel for the Appellant did not contend that the alleged offence did not take place when the 2003 was operational. See QUEEN v. BUKUR (supra), where the Supreme Court held that the liability of an offender for a statutory offence committed while in force is preserved, notwithstanding the repeal of the statute after the commission of the offence and before the charge. See also NURUDEEN

ADEWALE ARIJE v. F.R.N. CA/L/770/2009 DELIVERED ON 6/11/2014 PER OSEJI, JCA and FRED C. AJUDUA v. F.R.N. CA/L/242/2014 DELIVERED ON 18th DAY JUNE 2014, PER Y. B. NIMPAR, JCA. See also A-G LAGOS STATE v. DOSUMU (1989) 2 SC (Pt. 1) 522. It is therefore immaterial that there is a charge under the repealed law. The applicable law is that which was operational when the offence was committed. It is trite that time does not run against the State with regards the prosecution of offences. See ORGI v. F.R.N. (2007) 13 NWLR (Pt. 1050) 58 at 94; KALANGO v. GOV. BAYELSA STATE (2002) 17 NWLR (Pt. 797) 617. In AREMU v. ADEKANYE (2004) 13 NWLR (Pt. 891) 972, the Supreme Court held as follows:-

“The legal position is that the applicable law to a cause of action is the law prevailing at the time the cause of action arose not withstanding that that law has been revoked at the time the action is being tried. See also UWAIFO v. A-G BENDEL STATE (1982) 7 SC 124.”

Furthermore, Section 6(1) of the Interpretation Act is relevant here. It deals with the inability of a repealed enactment to revive an extant right and that incidence as well as the retention of accrued rights

and that incidence in spite of the repeal of an enactment.

It becomes relevant to accrued right before a repeal a cannot be taken away except the new legislation is retrospective. The section provides for what a repealed enactment shall not do thus:

(a) Revive anything not in force or existing at the time when the repeal takes effect.

(b) Affect the previous operation of the enactment or anything duly done under the enactment.

(d) Affect any penalty for future or punishment incurred in respect of an offence committed under the enactment.

(e) Affect any investigation legal proceeding or remedy, in respect of any such right, privilege obligation, liability, penalty forfeiture or punishment and any investigation legal proceeding in or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the enactment had not been repealed.

What the provision does is to save any right accrued or incurred under a repealed enactment and in the case of the right of the state to

prosecute offences committed under a repealed law. See NTOE ANDREW ANSA & ORS v. THE REGISTERED TRUSTEES OF THE PRESBYTERYAN CHURCH OF NIG (2007) LPELR-4636 (CA).

It is therefore settled that an action or an operation carried out under a repealed law subsists even after a repeal of the legislation.

The learned trial Judge was correct when she held that it was not fatal to the proceedings.

I resolve this issue partly in favor of the Respondent.

ISSUE 4

Wole Olanipekun, SAN, submitted that criminal liability is personal and that Ontario Oil & Gas (5th Defendant) is a juristic personality and cannot be vicariously held for the criminal liability of misdemeanour of another person and that there is no scintilla of evidence on record by prosecution to link the Appellant with the alleged infraction of the law. He referred to SALOMON v. SALOMON (1897) ACC 22, ADEYEMI v. LAW & BAKER (NIG) LTD (2000) 7 NWLR (Pt. 663) 33 AT 51, PREST v. PETRODEL RESOURCES (2013) 2 A.C. 415; ADENIYI v. STATE (1992) 4 NWLR (Pt. 234) 248 AT 260-261, H-G; ESONGEDO v. STATE (1989) 4 NWLR (Pt. 113) 57; KARIMU v. STATE (1989) 1 NWLR (Pt. 96) 124.

On this point he said there is also no evidence showing that Appellant acted in his personal capacity in respect of the transaction. He cited AJIDAGBA v. IGP (1958) SCNLR 60, F.R.N. v. DARIYE (2011) LPELR – CA/K/NO4/CO5, DINA v. DANIEL (2010) 11 NWLR (Pt. 1204) 137.

In addition, he submitted that the EFCC had not taken the Appellants statement as at time of arraignment of 20/7/12; that it was only dated on 1/8/12 and this is contrary to law. He stated that taking of the statement is a condition precedent to arraignment. He referred to ATOLAGBE v. AMINU (SUPRA) 562, MADLKOLU v. NKEMDILIM (supra).

Respondent in reply contended that the Appellant did not raise this issue in their application and it was being raised for the first time and should be discountenanced. He referred to ONAFOWOKAN v. WEMA BANK?(2011) 12 NWLR (Pt. 1260) 24 AT 56; ABACHA v. FAWEHINMI (2010) 6 NWLR (Pt. 660) 228 AT 351. In the alternative, he referred Pg. 1982 of the record that the lower court stated that liability of company as regards legal personality had not yet reached the stage to be applied and that SALOMON v. SALOMON would not apply; He referred to Section 10 of the

Advance Fee Fraud & Other Related Offences Act 2006.

He relied on HALSBURY LAWS OF ENGLAND 4th Edition 2006 reissue Vol. 11(1), pg. 48 para 38, TESCO SUPERMARKETS v. NATHRASS (1971) 2 ALL ER 127, CHINWO v. OWHANDA (2008) 2 NWLR (Pt. 1074) 341 AT 362; PUBLIC FINANCE SECURITIES LTD v. JEFIE (1998) 3 NWLR (Pt. 543) 602, OYEBANJI v. STATE (2011) LPELR-3765 to the effect that allegation of crime lifts the veil of incorporation.

He pointed out that the Appellant is a director in Ontario Oil & Gas Nig., a signatory to its bank account who also demanded for the payment of the money from the subject matter of the information from the Central Bank and partakes in running of the company.

He relied on “Glanville Williams in Criminal Law” Second Edition Page 970. Finally he said that evidence abounds in respect of 5th Appellant that he ran out of the country and failed to honour the EFCC’s invitation and that the time of the statement is irrelevant at that stage.

In reply, Appellant referred to pages 1884-1888, 1920-1923 of the record where Appellant raised the issue and the lower court made pronouncement in its ruling, hence it was ground

12. He noted that there is no cross appeal against the ruling of the lower court.

There is no gainsaying that generally vicariously liability is not allowed in law, but there are exceptions even in the doctrine of corporate liability; it is known that a company does run on its own but on the minds of the organs of the company who in law are organs of the company. These are the members of the companies and organizations of the company they control and direct the minds of the company be it private or public.

In this case, there is a statutory exception created in Section 10 of the Advance Fee Fraud & Other Related Act thus:

“1. When an offence under this act which has been committed by a body corporate is proved to have been committed on the instigation or with the connivance of or attributable to any neglect on the part of a director, manager, secretary or other similar officer of the body corporate, or any person purporting to act in any such capacity, he well as the body corporate, where practicable, shall be deemed to have committed that offence and shall be liable to be proceeded against and punished accordingly.

2. Where a body

corporate is convicted of an offence under this Act, the High Court may order that the body corporate shall thereupon and without any further assurance, but for such order be wound up and all its assets and properties to the Federal Government.”

See ALADE v. ALIC NIG. LTD (2010) 19 NWLR (Pt. 1226) 111.

?In FDB FINANCIAL SERVICES LTD v. ADESOZA (2002) 8 NWLR (Pt. 668) 170 at 173, the court considering the power of a company with the mind of its operation held thus:-

“The consequences of reorganizing the separate personality of a company is to draw a veil of incorporation over the company. One is therefore generally not entitled to go behind or lift this veil. However, since a statute will not be allowed to be used as an excuse to justify illegality or fraud it is a quest to avoid the normal consequences of the statute which may result in grave injustice that the court as occasion demands how to look behind or preserve the corporate veil”.

In OYEBANJO v. STATE (2011) LPELR-3765 (CA), the court held that the rule of a corporation is well stated in the case of TRENCO (NIG) LTD v. AFRICAN REAL ESTATE (1978) 7 Law Report of Nigeria 146 at 153 as

follows:-

“But a company, although a legal person is an artificial one which can only act through its human agents and officers, Viscount Huldane in LENNARD’S CARRYING CO. v. ASIATIC PETROLEUM CO. LTD (1919) A.C. 705 stated:-

My Lords, a Corporation is an abstraction. It has no mind of its own any more than it has a body of its own. Its active and directing will must consequently be sought in the person of somebody who for some purpose may be called an agent; but who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation”.

See ADEDIPE v. FRAMEINENDUR (supra), therefore there is a vicarious liability in law where fraud is imposed.

Furthermore there is a statutory backing to this point of view. In Section 290 of the CAMA:-

“290 Personal liability of directions and offences

Where a company –

c with intent to defraud, falls to apply the money or other property for the purpose for which it was received every director or other officers of the company who is in default shall be personally liable to the point, from whom the money or property; so

received and not applied for the purpose for which it was received.

Provided that nothing in this section shall affect the liability of the company itself.”

Having settled the issue, the question whether; there is no evidence linking the Appellant for the act, to the extent that the lower court ought to discharge them on the counts and not to attribute vicarious liability?

I have perused the ruling of the court painstakingly; I find that the court held that this issue cannot be considered at this stage but at the end of the case when it can be properly examined. It does not flow from any of the decision of the lower court.

There is no decision thereof on this issue; the lower court having not made any findings thereof, the appellate court cannot touch it. See NWANKWO v. EDOSUA (2007) 5 NWLR (Pt. 1027) 77; AKILU v. ODUTAN (2007) SC (Pt. 11) 106. It is premature at this stage to look into this issue.

I resolve issue 4 in favour of the Respondent.

In the light of the above, I hereby resolve?all issues against the Appellant except on the interpretation of Section 251(3) of the 1999 Constitution (as amended) and the striking out

of Section 19 of the Admiralty Jurisdiction Act by the lower court. This appeal fails and it is dismissed. The suit at the lower court is directed to resume and I order accelerated hearing accordingly. The ruling of Okunnu J. delivered on 10/10/2014 is hereby partly affirmed.

AMINA ADAMU AUGIE, J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother, Obaseki-Adejumo, JCA, and I agree with his reasoning and conclusion. He has said all there is to say on the issues as canvassed by the parties, and I will only be over flogging the issues if I tread down the same path. Suffice it to say that I agree entirely with the arguments/submissions proffered by the Respondent on the Issue of jurisdiction. There is no one-size-fits-all for cases that traverse through the courts; every case is determined on its facts and circumstances, and looking at the facts of this case carefully, it is the Lagos State High Court that will hold sway in this matter because the offences charged do not actually touch on admiralty matters or Revenue of the Federal Government of Nigeria.

The allegations against the Appellant

are rooted on the use of forged documents to obtain payment from the special subsidy funds; pure and simple. Jurisdiction is an exact law that has to be applied exactly to any given case.

See Onwudiwe v. F.R.N. (2006) 10 NWLR (Pt. 988) 382, where Tobi, JSC, added-

“It is either a court has jurisdiction in a matter or it has not. In the determination of a jurisdiction of a court, the enabling low vesting jurisdiction has to be taken in the light of the relief or reliefs sought. The moment the relief sought comes within the jurisdiction of the Court as adumbrated by the facts the court must assume jurisdiction as it has jurisdiction to do so. – – The reverse position is also correct and it is that the moment the relief sought does not come within the jurisdiction of the court, as adumbrated by the facts, the court must reject jurisdiction as it has no jurisdiction in the matter. To that extent, jurisdiction looks almost like an exact formula in calculus, although it is devoid of actual figures and numbers”.

In this case, the offences as charged fall squarely within the jurisdiction of the Lagos State High Court. It is for this and other

reasons in the lead judgment that I also dismiss the appeal, and I abide by the consequential orders therein.

TIJJANI ABUBAKAR, J.C.A.: The allegations against the Appellant in this appeal revolve around offences relating to obtaining by false pretences, forgery, uttering and conspiracy. These are clearly state offences under the Criminal Code, and therefore triable by the State High Court.

Appellant made strenuous efforts to bring the charge within the admiralty jurisdiction of the Federal High Court, by the combined reading of Section 251(1) (3) of the Constitution of the Federal Republic of Nigeria 1999 and Section 19 of the Admiralty jurisdiction Act 1991.

Section 251 (1) (a) – (s) listed the areas where the Federal High Court has exclusive jurisdiction; Appellant tried to cling to Section 251 (1) (g) which provides as follows:

“any admiralty jurisdiction including shipping and navigation on the River Niger or River Benue and their effluents, and on such other Inland water ways as may be designed by any enactment to be an International water way, all Federal ports (including the constitution and powers of

the ports authorities for Federal ports) and carriage by sea.”

Appellant also relied on Section 19 of the Admiralty Jurisdiction Act 1991, which the learned trial Judge for some inexplicable reasons struck down. I fully support the position of my learned brother restoring the provisions of Section 19 of the Act, while adding that such decision by the learned trial Judge is totally unprovoked.

The allegation against the Appellant is that of manipulating documents to induce personal gain and therefore totally unrelated to importation. The facts grounding the allegation as they stand cannot successfully activate the admiralty jurisdiction of the Federal High Court, the allegations disclose State offences that must be heard and determined by the State High Court.

My learned brother Obaseki-Adejumo JCA, thoroughly dealt with the issues in this appeal, and fully covered the field, I join in holding that Appellants appeal lacks merit and deserves to be dismissed. It is accordingly dismissed.?

I also affirm the ruling of the lower court and abide by all consequential orders.

?Sgd: AMINA ADAMU AUGIE, (J.S.C)

Sgd: TIJJANI ABUBAKAR, (J.S.C)

Sgd: ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, (J.S.C)

Appearances

Chief Wole Olanipekun, SAN with him

Y.A.KAdiri, E,D.Onyeke, Bode Olanipekun,

I.O.Muftau, Wole Okenile, R.A. Idaeho, M.O

Oreagba, Are Ogunwumiju, Iseoluwa Akinbade,

Bayo Majekolagbe- For Appellant

Rotimi Jacobs, SAN with Adebisi Adeniyi,

Oladipupo Yeye and Miss J.E.Okoh- For Respondent

Appearances

Chief Wole Olanipekun, SAN with Y. A. Kadiri, E. D. Onyeke, Bode Olanipekun, I. O. Muftau, Wole Okenile, R. A. Idaeho, M. O. Oreagba, Are Ogunwumiju, Iseoluwa Akinbade, Bayo MajekolagbeFor Appellant

AND

Rotimi Jacobs, SAN with Adebisi Adeniyi, Oladipupo Yeye and Miss J. E. OkohFor Respondent

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