AJANAKU v. FRN
(2022)LCN/16131(CA)
In the Court of Appeal
(LAGOS JUDICIAL DIVISION)
On Wednesday, June 08, 2022
CA/LAG/CR/272/2021
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
OLADIMEJI AJANAKU APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
WHETHER OR NOT AN APPELLANT MUST SUCCEED ON THE STRENGTH OF HIS OWN CASE AND NOT ON THE WEAKNESS OF THE DEFENDANT’S CASE
An appellant succeeds or fails on his own brief. He succeeds on the strength of his own case. He must show that the decision of the lower Court was wrong, and that he is entitled to the orders he seeks from the appellate Court against the said decision. Therefore, an appeal does not automatically succeed when a respondent fails to file a respondent’s brief. In Echere v. Ezirike (2006) 5 S.C. (Pt.1) 65, (2006) LPELR-1000 (SC) at page 20 of E-Report, Ogbuagu, JSC, succinctly put it this way:
“It is not automatic that when once a respondent fails to file his brief, that is, the appellant automatically, must win or succeed in the appeal. No. But there is a rider or call it a big BUT. The consequence of such failure, is that the respondent, will be deemed to have admitted the truth of, everything stated in the appellant’s brief.”
See also Ogbu v The State (2007) LPELR-2289(SC); Okelola v. Adeleke (2004) LPELR-2438(SC); Ogbu & Anor. v The State (2007) LPELR – 2289 (SC); Umeh v Nwokedi (2016) LPELR-41470(CA); Emori v Inspector Okoko (2015) LPELR-25828(CA). PER OTISI, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
The issue of jurisdiction is always a threshold issue. Jurisdiction is the authority which a Court has to decide matters that are litigated before it, or to take cognizance of the matters presented in a formal way for its decision. Jurisdiction is conferred on a Court by the Constitution or by statute, as may be permitted by the Constitution; Saraki v FRN (2016) LPELR-40013(SC); Adetayo v Ademola (2010) LPELR-155(SC); Adah v NYSC (2004) 19 NSCQR 220; Utih v Onoyivwe (1991) 1 SCNJ 25. The jurisdiction or authority of the Court is controlled or circumscribed by the law creating the Court itself. Or, it may be circumscribed by a condition precedent created by legislation which must be fulfilled before the Court can entertain the suit.
Jurisdiction is so radical that it forms the foundation of adjudication. Jurisdiction was described by the Court, per I.T. Muhammad, JCA (now CJN) inSudan Airways Co. Ltd v Abdullahi (1998) 1 NWLR (PT 532) 156 at 163 as the spinal cord of a Court of law. See alsoPetroleum (Special) Trust Fund v. Fidelity Bank Plc & Ors (2021) LPELR-56625(SC); Ahmed v Ahmed & Ors (2013) LPELR-21143(SC). A complaint querying the jurisdiction or authority of a Court to hear a matter is foundational to the legality of any decision flowing from the proceedings before that Court over such matter. If a Court lacks jurisdiction, then it lacks the necessary competence to entertain the claim before it; Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508; Aremo II v Adekanye (2004) 11 MJSC 11; Drexel Energy and Natural Resources Ltd & 2 Ors v. Trans International Bank Ltd (2008) 12 S.C. (PT. II) 240. PER OTISI, J.C.A.
THE FACTORS THAT CONSISTITUTE THE JURISDICTION OF THE COURT TO ENTERTAIN A MATTER
A Court is said to have jurisdiction and competent to entertain a matter when: –
a) It is properly constituted as regard members and qualification of the members of the bench and no member is disqualified for one reason or the other,
b) The subject-matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction, and;
c) The case comes before a Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
These pre-conditions are conjunctive and the non-fulfillment or absence of any of them automatically robs the Court of the jurisdiction to hear and determine the suit; Madukolu v. Nkemdilim (1962) 3 SCNLR 34; Tukur v. Government of Taraba State (1997) 6 NWLR (PT 510) 549; Drexel Energy and Natural Resources Ltd & 2 Ors v. Trans International Bank Ltd (supra). Jurisdiction may be territorial or substantive. Substantive jurisdiction refers to matters over which a Court may adjudicate as expressly stipulated by the Constitution or by enabling statutes; Dalhatu v. Turaki & Ors (2003) LPELR-917(SC); Idemudia v Igbinedion University, Okada (2015) LPELR-24514(CA); Patil v FRN (2014) LPELR-24078(CA); Ibori v FRN (2008) LPELR-8370(CA). PER OTISI, J.C.A.
THE MEANING OF TERRITORIAL JURISDICTION
Territorial or geographical jurisdiction refers to the geographical area in which matters brought before the Courts for adjudication arose. Territorial jurisdiction may mean jurisdiction that a Court may exercise over persons residing or carrying on business within a defined area, or in respect of a contract where its terms bring it within the area; Megatech Engineering Limited v. Sky Vision Global Networks LLC (2014) LPELR-22539(CA); Billage Resources Limited v. Forcerock Tools Limited (2021) LPELR-56358(CA). Or it may be administrative, governing which Court or which of its divisions may exercise jurisdiction over a matter; Mailantarki v. Tongo & Ors (2017) LPELR-42467(SC); Lemit Engineering Limited v. Reynolds Construction Company Limited (2017) LPELR-42550(CA).
Territorial jurisdiction was described by the Supreme Court in Dariye v FRN (2015) LPELR-24398(SC), per Ngwuta, JSC at page 29 of the E-Report thus:
“Territorial jurisdiction implies a geographical area within which the authority of the Court may be exercised and outside which the Court has no power to act. Jurisdiction, territorial or otherwise, is statutory and is conferred on the Court by the law creating.”
See also: Iyanda & Ors v. Laniba II & Ors (2002) LPELR-7084(CA). PER OTISI, J.C.A.
FACTOR TO CONSIDER IN DETERMINING TERRITORIAL JURISDICTION IN CRIMINAL TRIALS
Usually, criminal jurisdiction is dependent on the enabling law setting out the jurisdiction of the Court against the charge preferred against the defendant. In order to have jurisdiction, the Court must be satisfied that jurisdiction over the offence or crime is directly conferred on it by the enabling law; Onwudiwe v Federal Republic of Nigeria (2006) LPELR-2715(SC). The Court cannot exercise jurisdiction where the offence or crime is outside the enabling law; Bakkat v FRN (2013) LPELR-22817(CA). The Court must also be satisfied that ingredients of alleged offence or elements thereof occurred within the territorial jurisdiction of the Court; Njovens v State (1973) LPELR-2042(SC), (1973) All NLR 371; Nyame v Federal Republic of Nigeria (2009) LPELR-8872(CA); Ibori v FRN (supra); Manya v State (supra); Ireneaus v. FRN (2018) LPELR-43890(CA).
On what to consider in determining territorial jurisdiction in criminal trials, Nweze, JSC in Dariye v FRN (supra) at page 48, cited the earlier decision of the Supreme Court in Nyame v FRN (2010) All FWLR (Pt.527) 618, thus:
“On the questions of territorial jurisdiction of the trial Court and whether the said trial Court could hear and determine the charges against the appellant, it suffices to re-iterate the views of this Court in Nyame v. FRN (2010) All FWLR (Pt.527) 618, where Adekeye JSC laid down a very illuminating guide on how to resolve the issue of venue of trial of an accused person. According to the legal Amazon:
Whenever the issue of the venue of the trial of an accused person comes up for determination, the most appropriate way of resolving the issue is to identify the offences charged and the elements of same as contained in the proof of evidence with a view to determining whether any of the acts constituting the offence occurred in the particular place where the accused is being tried.” (Emphasis mine).
Restating these principles in Golit v. IGP (2020) LPELR-50636(SC), the Supreme Court, per Sanusi, JSC said:
“In determining whether a trial Court had territorial jurisdiction to hear and determine the case, the issue of venue is to be determined by the trial Court which should ascertain the identity of the offence(s) charged and the elements of the offences as contained in the proof of evidence with with a view to ascertaining whether any of the acts constituting the offence occurred in a particular place.” PER OTISI, J.C.A.
WHETHER OR NOT AN ORDER FOR RETRIAL IN A CRIMINAL CASES
It is trite that an order for retrial in a criminal case is not automatic where a trial has been declared a nullity. An order for retrial de novo may be made in some circumstances, depending on the facts and nature of the case. Each case must be considered in the light of the peculiar circumstances which form the background of the case; Onwe v. State (2017) LPELR-42589(SC); Omosaye v. The State (2014) LPELR-22059(SC).
This Court is empowered, where an appeal has been allowed and a conviction has been set aside, to order a retrial, by virtue of the provisions of Section 19 (2) of the Court of Appeal Act, Laws of the Federation of Nigeria, 2004, which provides:
“Subject to the provisions of this Act, the Court of Appeal shall, if it allows an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered or order the appellant to be re-tried by a Court of competent jurisdiction.”
(Emphasis mine).
However, it is well settled that in exercising this power, the Court would be guided by principles as laid down by the Apex Court in the case of Yesufu Abodundu 4 Ors. v. The Queen (1956) NSCC Vol. I page 56 and reaffirmed in subsequent judicial pronouncements that include: Eyorokoromo & Anor v. State (supra); Adeoye v The State (1999) LPELR-134(SC); Umaru v. State (supra); Yahaya v State (2002) LPELR-3508(SC); Elijah v State (2013) LPELR-20095(SC); Onwe v State (supra); Omosaye v. The State (supra); Mohammed v State (2019) LPELR-47632(SC). These principles identify factors that include:
1. That there has been such an error in law (including the absence of the law of evidence) or an irregularity in procedure which renders the trial a nullity or makes it possible for the Appeal Court to say that there has been no miscarriage of justice.
2. That apart from the error of law or irregularity in procedure the evidence taken as a whole discloses a substantive case against the defendant.
3. That there are no special circumstances which would make it unjust or oppressive to put the accused on trial a second time.
4. That the offence or offences for which the defendant was charged and convicted, and their consequences are serious in nature.
5. That to refuse an order of retrial would occasion a greater injustice than to grant it.
6. The lapse of time since the commission of the offence.
7. The effect of the retrial on the quality of evidence and nature of the first trial whether substantial or not.
These are factors that would weigh in determining whether or not an order for retrial would be appropriate. PER OTISI, J.C.A.
ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): The Appellant was arraigned before the High Court of Lagos State, Coram M. A. Dada, J., alongside three others on an Amended Information for conspiracy, obtaining by false pretense of the sum of N160million, contrary to Sections 8(a), 1(1)(a) and 1(3) of the Advance Fee Fraud and Other Related Offences Act, and use of false document, contrary to Sections 364(1) and 363(2)(a) & (b) of the Criminal Law of Lagos State.
At the conclusion of his trial, he was convicted for conspiracy, and obtaining money by false pretense on 28/08/2020, and sentenced. Dissatisfied with his conviction, the Appellant lodged this appeal by Notice of Appeal filed on 28/10/2020 on eleven grounds of appeal, pages 317 – 327 of Record of Appeal.
The Appellant’s Brief was filed on 11/1/2022. The Respondent was served with the Appellant’s Brief on 11/1/2022, but filed no Brief in response. At the hearing of the appeal on 25/4/2022, the Respondent’s Counsel, who was served with hearing notice by email and short message service (SMS) on 13/4/2022, did not appear. There was no explanation for his absence before the Court. Being satisfied that the Respondent had been served with the Appellant’s Brief and, had due notice of the hearing of the appeal, the Court heard the Appellant’s arguments on the appeal.
In the Appellant’s Brief, four issues were formulated for determination:
1. Whether the lower Court was right when it held that the prosecution proved beyond reasonable doubt against the Appellant the offence of obtaining by false pretense – Ground 8.
2. Whether the lower Court was right when she held that the Prosecution proved against the Appellant the offence of conspiracy beyond reasonable doubt – Grounds 2, 3, 4, 5 and 10.
3. Whether the lower Court did not misapprehend the facts, evidence and circumstances of this case which misapprehension inevitably led it to a pervert judgment against the Appellant – Grounds 1, 6 and 9.
4. Whether the lower Court had jurisdiction to adjudicate over the offences brought before it – Ground 7.
The issue of jurisdiction being a threshold issue, I consider it expedient to first consider Issue 4.
Issue 4
The Appellant submitted that the learned trial Judge did not have the territorial jurisdiction to try the offences contained in the Amended Information dated 17/01/2018. The offences were alleged to have been committed in Rivers State. The High Court of Lagos State has no jurisdiction to try offences committed in Rivers State. The lower Court had no jurisdiction to have entertained that Information when it was brought before it by the Economic and Financial Crimes Commission (EFCC). That while the law allows the EFCC to investigate and prosecute financial crimes in all States in Nigeria, no law confers on the High Court of Lagos State the jurisdiction to try offences committed wholly in Rivers State or any other State.
The Record of Appeal would show that the Appellant and all the other defendants live and work in Rivers State. The sum allegedly diverted was meant for Rivers State Internal Revenue Service (RSIRS). The money was paid or diverted in Rivers State because it was paid by Union Bank, Port-Harcourt Branch and the alleged receipt of payment issued to Union Bank, Port Harcourt Branch. The 4th defendant at the lower Court, Raynald Integrated Ltd, that received the funds, is domiciled in Port Harcourt. Reliance was also placed on the exhibits tendered at the lower Court. All the defendants in the Amended Information were persons resident in Rivers State, and alleged to have conspired and obtained the With Holding Tax in Rivers State. The Appellant queried what could have donated jurisdiction to the lower Court, on which basis it went ahead to entertain the Amended Information. That there is no law that states that when a crime is investigated in a particular State, such proximity vests jurisdiction in the High Court of that State. That the trial Court did not possess the requisite vires to preside over and determine the Amended Information brought before it, and that the decision reached thereon amounted to a nullity, citing Nigerian Army v A. Kano (2010) All FWLR (Pt 532) 1805, 1808; Okafor v A. G., Anambra State (1991) 6 NWLR (Pt 200) 659.
It was argued that the provisions of Section 19(1) of the Economic and Financial Crimes Commission (Establishment) Act 2004 to the effect that “The Federal High Court or High Court of a State or of the Federal Capital Territory has jurisdiction to try offences under this Act”, does not confer on the High Court of a State the vires to try an offence under the Act committed wholly in another State. The Section only confers jurisdiction to try offences under the Act on the Federal High Court, a State High Court and the High Court of the FCT, but did not confer extra-territorial jurisdiction on them. Reliance was placed on Section 272 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The decisions in Manya v. State (2012) LPELR-15185(CA); Momodu v State (2008) All FWLR 62, 102 were also cited and relied on.
The Court was urged to quash the conviction handed down for lack of jurisdiction, but acquit the Appellant, who had spent five years in prison.
Resolution
The Respondent filed no Brief of Argument in response to the arguments of the Appellant. By virtue of the provisions of Order 19 Rule 10(1) of the 2021 Rules, the consequence of failure to file a respondent’s brief is simply that the respondent cannot be heard in oral argument. Notwithstanding, the burden on the Appellant is not lightened. An appellant succeeds or fails on his own brief. He succeeds on the strength of his own case. He must show that the decision of the lower Court was wrong, and that he is entitled to the orders he seeks from the appellate Court against the said decision. Therefore, an appeal does not automatically succeed when a respondent fails to file a respondent’s brief. In Echere v. Ezirike (2006) 5 S.C. (Pt.1) 65, (2006) LPELR-1000 (SC) at page 20 of E-Report, Ogbuagu, JSC, succinctly put it this way:
“It is not automatic that when once a respondent fails to file his brief, that is, the appellant automatically, must win or succeed in the appeal. No. But there is a rider or call it a big BUT. The consequence of such failure, is that the respondent, will be deemed to have admitted the truth of, everything stated in the appellant’s brief.”
See also Ogbu v The State (2007) LPELR-2289(SC); Okelola v. Adeleke (2004) LPELR-2438(SC); Ogbu & Anor. v The State (2007) LPELR – 2289 (SC); Umeh v Nwokedi (2016) LPELR-41470(CA); Emori v Inspector Okoko (2015) LPELR-25828(CA).
The issue of jurisdiction is always a threshold issue. Jurisdiction is the authority which a Court has to decide matters that are litigated before it, or to take cognizance of the matters presented in a formal way for its decision. Jurisdiction is conferred on a Court by the Constitution or by statute, as may be permitted by the Constitution; Saraki v FRN (2016) LPELR-40013(SC); Adetayo v Ademola (2010) LPELR-155(SC); Adah v NYSC (2004) 19 NSCQR 220; Utih v Onoyivwe (1991) 1 SCNJ 25. The jurisdiction or authority of the Court is controlled or circumscribed by the law creating the Court itself. Or, it may be circumscribed by a condition precedent created by legislation which must be fulfilled before the Court can entertain the suit.
Jurisdiction is so radical that it forms the foundation of adjudication. Jurisdiction was described by the Court, per I.T. Muhammad, JCA (now CJN) in Sudan Airways Co. Ltd v Abdullahi (1998) 1 NWLR (PT 532) 156 at 163 as the spinal cord of a Court of law. See also Petroleum (Special) Trust Fund v. Fidelity Bank Plc & Ors (2021) LPELR-56625(SC); Ahmed v Ahmed & Ors (2013) LPELR-21143(SC). A complaint querying the jurisdiction or authority of a Court to hear a matter is foundational to the legality of any decision flowing from the proceedings before that Court over such matter. If a Court lacks jurisdiction, then it lacks the necessary competence to entertain the claim before it; Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508; Aremo II v Adekanye (2004) 11 MJSC 11; Drexel Energy and Natural Resources Ltd & 2 Ors v. Trans International Bank Ltd (2008) 12 S.C. (PT. II) 240.
A Court is said to have jurisdiction and competent to entertain a matter when: –
a) It is properly constituted as regard members and qualification of the members of the bench and no member is disqualified for one reason or the other,
b) The subject-matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction, and;
c) The case comes before a Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
These pre-conditions are conjunctive and the non-fulfillment or absence of any of them automatically robs the Court of the jurisdiction to hear and determine the suit; Madukolu v. Nkemdilim (1962) 3 SCNLR 34; Tukur v. Government of Taraba State (1997) 6 NWLR (PT 510) 549; Drexel Energy and Natural Resources Ltd & 2 Ors v. Trans International Bank Ltd (supra). Jurisdiction may be territorial or substantive. Substantive jurisdiction refers to matters over which a Court may adjudicate as expressly stipulated by the Constitution or by enabling statutes; Dalhatu v. Turaki & Ors (2003) LPELR-917(SC); Idemudia v Igbinedion University, Okada (2015) LPELR-24514(CA); Patil v FRN (2014) LPELR-24078(CA); Ibori v FRN (2008) LPELR-8370(CA). Territorial or geographical jurisdiction refers to the geographical area in which matters brought before the Courts for adjudication arose. Territorial jurisdiction may mean jurisdiction that a Court may exercise over persons residing or carrying on business within a defined area, or in respect of a contract where its terms bring it within the area; Megatech Engineering Limited v. Sky Vision Global Networks LLC (2014) LPELR-22539(CA); Billage Resources Limited v. Forcerock Tools Limited (2021) LPELR-56358(CA). Or it may be administrative, governing which Court or which of its divisions may exercise jurisdiction over a matter; Mailantarki v. Tongo & Ors (2017) LPELR-42467(SC); Lemit Engineering Limited v. Reynolds Construction Company Limited (2017) LPELR-42550(CA).
Territorial jurisdiction was described by the Supreme Court in Dariye v FRN (2015) LPELR-24398(SC), per Ngwuta, JSC at page 29 of the E-Report thus:
“Territorial jurisdiction implies a geographical area within which the authority of the Court may be exercised and outside which the Court has no power to act. Jurisdiction, territorial or otherwise, is statutory and is conferred on the Court by the law creating.”
See also: Iyanda & Ors v. Laniba II & Ors (2002) LPELR-7084(CA).
Usually, criminal jurisdiction is dependent on the enabling law setting out the jurisdiction of the Court against the charge preferred against the defendant. In order to have jurisdiction, the Court must be satisfied that jurisdiction over the offence or crime is directly conferred on it by the enabling law; Onwudiwe v Federal Republic of Nigeria (2006) LPELR-2715(SC). The Court cannot exercise jurisdiction where the offence or crime is outside the enabling law; Bakkat v FRN (2013) LPELR-22817(CA). The Court must also be satisfied that ingredients of alleged offence or elements thereof occurred within the territorial jurisdiction of the Court; Njovens v State (1973) LPELR-2042(SC), (1973) All NLR 371; Nyame v Federal Republic of Nigeria (2009) LPELR-8872(CA); Ibori v FRN (supra); Manya v State (supra); Ireneaus v. FRN (2018) LPELR-43890(CA).
On what to consider in determining territorial jurisdiction in criminal trials, Nweze, JSC in Dariye v FRN (supra) at page 48, cited the earlier decision of the Supreme Court in Nyame v FRN (2010) All FWLR (Pt.527) 618, thus:
“On the questions of territorial jurisdiction of the trial Court and whether the said trial Court could hear and determine the charges against the appellant, it suffices to re-iterate the views of this Court in Nyame v. FRN (2010) All FWLR (Pt.527) 618, where Adekeye JSC laid down a very illuminating guide on how to resolve the issue of venue of trial of an accused person. According to the legal Amazon:
Whenever the issue of the venue of the trial of an accused person comes up for determination, the most appropriate way of resolving the issue is to identify the offences charged and the elements of same as contained in the proof of evidence with a view to determining whether any of the acts constituting the offence occurred in the particular place where the accused is being tried.” (Emphasis mine).
Restating these principles in Golit v. IGP (2020) LPELR-50636(SC), the Supreme Court, per Sanusi, JSC said:
“In determining whether a trial Court had territorial jurisdiction to hear and determine the case, the issue of venue is to be determined by the trial Court which should ascertain the identity of the offence(s) charged and the elements of the offences as contained in the proof of evidence with a view to ascertaining whether any of the acts constituting the offence occurred in a particular place.”
The Appellant and his co-defendants, faced the following three count amended charge:
STATEMENT OF OFFENCE – 1ST COUNT
Conspiracy to commit on offence contrary to Sections 8(a) and 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act No. 14 of 2006.
PARTICULARS OF OFFENCE
Solomon Nguma, Oladimeji Ajanaku Raymond Nyekwere Williams, Raymond Integrated Limited, Obinna Obed Akwuimu (now at large) and Paul Ojehonmon (at large) on or about the 15th day of August 2016, at Lagos within the Ikeja Judicial Division with intent to defraud, conspired to obtain money from union Bank Plc using false pretence.
STATEMENT OF OFFENCE – 2ND COUNT
Obtaining money by false pretence contrary to Sections 1(1)(a) and 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act No.14 of 2006.
PARTICULARS OF OFFENCE
Solomon Nguma, Oladimeji Ajanaku, Raymond Nyekwere Williams, Raymond Integrated Limited, Obinna Obed Akwuimu (now at large) and Paul Ojehonmon (at large) on or about the 17th day of September, 2016 at Lagos within the Lagos Judicial Division with intent to defraud obtained the sum of N160,000.000 (One Hundred and Sixty Million Naira) from Union Bank Plc by falsely representing to the bank that it was paying the sum of N160,000.000 (One Hundred and Sixty Million Naira) as withholding Tax to the Rivers State Internal Revenue Service through Raynald Integrated Services Limited which pretence you knew to be false.
STATEMENT OF OFFENCE – 5TH COUNT
Use of false document contrary to Section 364(1) and 363(2) (a & b) of the Criminal Law of Lagos State No. 11 of 2011.
PARTICULARS OF OFFENCE
Solomon Nguma, Oladimeji Ajanaku, Raymond Nyekwere Williams Raynard Integrated Limited Obinna Obed Akwuimu (now at large) and Paul Ojehonmon (at large) on or about the 15th August, 2016 at Lagos which the Lagos Judicial Division with intent to defraud knowingly and fraudulently used a document captioned. “GOVERNMENT OF RIVERS STATE OF NIGERIA: RIVERS STATE INTERNAL REVENUE SERVICE RE: NOTICE OF INTENTION TO LEVY DISTRAIN” dated 15th of August, 2016 purported to have emanated from the Rivers State Internal Revenue Service with the intent that the said document may be used or acted on as genuine to the prejudice of Union Bank Plc.
The provisions of Section 1(1) of the Advanced Fee Fraud and Other Fraud Related Offences Act are:
1.(1) Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud
(a) obtains, from any other person, in Nigeria or in any other country for himself or any other person; or
(b) induces any other person, in Nigeria or in any other country, to deliver to any person; or
(c) obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by the false pretence, commits an offence under this Act.
(2) A person who by false pretence, and with the intent to defraud, induces any other person, in Nigeria or in any other country, to confer a benefit on him or on any other person by doing or permitting a thing to be done on the understanding that the benefit has been or will be paid for commits an offence under this Act.
(3) A person who commits an offence under Subsection (1) or (2) of this Section is liable on conviction to imprisonment for a term of not more than 20 years and not less than seven years without the option of a fine.
The elements of this offence as enunciated by the Supreme Court, per Eko, JSC in Darlinton v FRN (2018) LPELR-43850(SC) at pages 14 -15 are:
“The offence of obtaining by false pretence created by Section 1(1)(a) of the Advance Fee Fraud and other Related Offences Act, 2006 is constituted or committed upon the existence of the following facts:
I. A pretence is made by way of representation.
II. From the accused person.
III. To the person defrauded.
IV. The representation is a pretence.
IV. The accused knows or has reason to know that the representation is false or does not believe in truth of the representation.
VI. The accused makes the false representation with intent to defraud the victim to whom the false representation was made.
VII. Consequence of the false representation the accused induced the victim to deliver or transfer some property or interest to the accused or some other person.
VIII. The property transferred is capable of being stolen i.e., is as portable.
These elements of the offence, under Section 1(1)(a) of the Advance Fee Fraud and Other Related Offences Act, are affirmed by this Court as the elements constituting the offence. See Onwudiwe v. FRN (2006) ALL FWLR (Pt.319) 774 at 779-780; (2006) 10 NWLR (Pt.988) 382. In fraud generally, there is always element of deceit or intent to deceive flowing from the fraudulent action or conduct.”
Section 20 of the Act defines false pretence as:
a representation, whether deliberate or reckless, made by word, in writing or by conduct, of a matter of fact or law, either past or present, which representation is false in fact or law, and which the person making it knows to be false or does not believe to be true.
See also Onwudiwe v. F.R.N (supra); Jules Suinner v. Federal Republic of Nigeria (2021) LPELR-53404(CA).
It is now to see if any of the acts constituting an element or elements of any of these alleged offences occurred in Lagos State, where the Appellant was tried; Morah v. FRN (2018) LPELR-44054(SC).
PW1 was a staff with the Internal Audit Department of Union Bank. He testified that:
“Sometime in August, 2016; Union bank received a Distant Warrant from Rivers State Internal Revenue, which is demand letter asking the Bank to pay usually overdue tax liability, through our Transamadi Branch to pay Tax liability of N160 Million. The branch forwarded the Distant Warrant to Paul Ojehomon who is the head of our Tax Unit. He asked the Distant Warrant and Advice, letter from our Tax Consultants Ijewere & Co. to obtain necessary approval for the payment of the N160 Million to the Account nominated on the Distant Warrant. Union Bank made payment to the Account of Raymond Integrated service Account in Sterling Bank after which tax receipt from Rivers State Internal Revenue Service and letter showing that we have been discharged of that liability.
However, on 24/05/2017, a Tax Force Team from Rivers State Internal Revenue Service visited our branch claiming that we are yet to pay the N160Million. When they were shown the tax receipt and letter evidencing receipt of payment, they told us that the receipt and letter did not emanate from them. So we carried out our own Internal Review and also contacted our Consultant Ijewere & Co. who also carried out their own Internal Review on 25/06/17, they came with the 1st and 2nd Defendants who had confessed during their Internal review that the N160Million was not paid to the River State Internal Revenue Service but was diverted.”
Page 36 – 37 of the Record of Appeal.
PW1 further testified that Union Bank was compelled to pay N160 million to Rivers State Government. Union Bank then petitioned EFCC. Exhibit 1, dated 5/6/2016, was the petition from Union Bank.
PW2 was a tax consultant with Ijewere & Co. He testified that the 1st and 2nd defendants standing trial before the lower Court, were their staff in Port Harcourt. The 2nd defendant was the Branch Head of their office in Port Harcourt. PW2 denied that the letter attached to Exhibit 1, which purported to have emanated from their office, had come from them. The letter had attached a purported Notice to Levy Distrain against all Union Bank branches in Rivers State, allegedly issued by the RSIRS account of demanding payment of N160 million into an account belonging to Raynard Integrated Services Ltd in Sterling Bank.
The evidence of PW3, Operative of EFCC who was part of the investigating team, was that their investigation revealed that the letter purportedly written by the RSIRS, did not emanate from them.
PW4 was a Relationship Officer with Sterling Bank, Transamadi Port Harcourt Branch. He testified that the Sterling Bank received an inflow of N160 million in the account of Raynard Integrated Ltd. Under cross examination, he said that the accounts of Raynard Integrated Ltd were domiciled in Oriji GRA Branch and Ogbimaabari Branch, all in Port Harcourt.
PW5 was the Head Legal/Board Secretary of the Rivers State Board of Internal Revenue. She testified that the Notice of Intention to Levy Distrain, normally served on a defaulting tax payer, that was served on Union Bank, Port Harcourt Branch did not emanate from the Board. Under cross examination she said:
“To my knowledge, yes, a fraud was perpetrated against Rivers State Internal Revenue Services in respect of this matter.
First the fraud was to the Board first the revenue that was meant to be paid to Rivers State Internal Revenue Services by Union Bank was diverted. The Fraud was perpetrated when we discovered that some banks were not paying the withholding tax deducted from accounts which they ought to have remitted to the State Government.
See page 79 of the Record of Appeal.
A scrutiny of the evidence of the prosecution will reveal the following: The complainant was Union Bank, which was served, through its Regional Manager in Port Harcourt Rivers State, with a fake Notice to Levy Distrain purportedly issued by the RSIRS against all its branches in Rivers State in respect of outstanding Withholding Tax for the years 2008 – 2013. There were four defendants who were charged. The 1st and 2nd defendants were staff of the Port Harcourt Branch of the Union Bank Tax Consultant, Ijewere & Co. The Appellant herein was the 2nd defendant. The 3rd defendant was the Managing Director of the 4th defendant, Raynald Integrated Services Ltd. The money in issue, N160 million was paid into the account of Raynald Integrated Services Ltd that was domiciled in one of the Branches of Sterling Bank in Port Harcourt. All the defendants were resident in Port Harcourt. The elements of the charge which the defendants faced, all took place in Port Harcourt, Rivers State.
Applying the guide advocated in Nyame v. FRN (2010) All FWLR (Pt.527) 618 at 660, and cited with approval in Dariye v FRN (supra) to the present case, I find it difficult to see any element of the offences as charged that took place in Lagos State. The fact that the complainant, Union Bank Plc, has its Head Office domiciled in Lagos cannot translate to mean that the offence or any part thereof took place in Lagos. The outstanding Withholding Tax represented in the said N160 million, was said to have arisen from accounts domiciled in Branches of the Bank in Rivers State. The fraudulent acts therefore took place in Rivers State and were executed in Rivers State. From the evidence of the prosecution, no element of these offences took place within Lagos State. I really cannot fathom how the Appellant was now charged and tried in Lagos State.
It is settled law that when a person within the boundaries of a State is alleged to have committed an offence, he is triable within that State. See also “Criminal Procedure in Nigeria: Law and Practice” by Oluwatoyin Doherty, pages 160 – 161. Per contra, the offence herein was committed in Port Harcourt, Rivers State but tried in Lagos State, a totally different State. No element of the offence has been shown to have been committed within Ikeja or Lagos Judicial Division of Lagos State. The lower Court therefore had no territorial jurisdiction to entertain the Information against the Appellant. The trial on this account, was a nullity; Eyorokoromo & Anor v. State (1979) LPELR-1187(SC); Umaru v State (2009) LPELR-3360(SC).
I consider it well settled that a trial conducted without jurisdiction is a nullity, irrespective of how well it is conducted;Dariye v FRN (supra). A nullity is, in law, an act which is void and lacking of any legal effect or consequence whatsoever. It is as if nothing happened. It is beyond remedy; Eyorokoromo & Anor v. State (supra); Lasisi v State (2013) LPELR-20715(SC); Odedo v PDP (2015) LPELR-24738(SC); Bude v. State (2016) LPELR-40435(SC). The lower Court lacked the territorial jurisdiction to entertain the Information against the Appellant. It is on this basis that the decision of the lower Court shall be set aside for being a nullity. I therefore resolve Issue 4 in favour of the Appellant and against the Respondent.
The other Issues distilled for resolution in this appeal are tied to consideration of the merits of the case. However, the trial having been adjudged a nullity, as the lower Court lacked the territorial jurisdiction to entertain the same, this Court ought to exercise restraint from making any conclusive comments on the evidence adduced at the trial Court, as this may be prejudicial to another trial, if a re-trial is ordered. Further, if the lower Court lacked jurisdiction to entertain the charge, neither would this Court have the jurisdiction to entertain the issues on the merit. All appeals are by way of re-hearing; Order 7 Rule 2 Court of Appeal Rules, 2021. Therefore, if the trial Court lacked jurisdiction to hear the matter, neither can the appellate Court exercise such jurisdiction; Section 15 Court of Appeal Act, 2004. See also Obi v INEC (2007) LPELR-9263(CA); Fastech Nigeria Limited v Zamfara State Government & Ors (2019) LPELR-48135(CA); Akarat v. Yabracks (2021) LPELR-53567(CA).
Before drawing the curtain on this judgment, I consider it germane to further consider whether an order for the retrial of the Appellant can be made in the circumstance of this case.
It is trite that an order for retrial in a criminal case is not automatic where a trial has been declared a nullity. An order for retrial de novo may be made in some circumstances, depending on the facts and nature of the case. Each case must be considered in the light of the peculiar circumstances which form the background of the case; Onwe v. State (2017) LPELR-42589(SC); Omosaye v. The State (2014) LPELR-22059(SC).
This Court is empowered, where an appeal has been allowed and a conviction has been set aside, to order a retrial, by virtue of the provisions of Section 19 (2) of the Court of Appeal Act, Laws of the Federation of Nigeria, 2004, which provides:
“Subject to the provisions of this Act, the Court of Appeal shall, if it allows an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered or order the appellant to be re-tried by a Court of competent jurisdiction.”
(Emphasis mine).
However, it is well settled that in exercising this power, the Court would be guided by principles as laid down by the Apex Court in the case of Yesufu Abodundu 4 Ors. v. The Queen (1956) NSCC Vol. I page 56 and reaffirmed in subsequent judicial pronouncements that include: Eyorokoromo & Anor v. State (supra); Adeoye v The State (1999) LPELR-134(SC); Umaru v. State (supra); Yahaya v State (2002) LPELR-3508(SC); Elijah v State (2013) LPELR-20095(SC); Onwe v State (supra); Omosaye v. The State (supra); Mohammed v State (2019) LPELR-47632(SC). These principles identify factors that include:
1. That there has been such an error in law (including the absence of the law of evidence) or an irregularity in procedure which renders the trial a nullity or makes it possible for the Appeal Court to say that there has been no miscarriage of justice.
2. That apart from the error of law or irregularity in procedure the evidence taken as a whole discloses a substantive case against the defendant.
3. That there are no special circumstances which would make it unjust or oppressive to put the accused on trial a second time.
4. That the offence or offences for which the defendant was charged and convicted, and their consequences are serious in nature.
5. That to refuse an order of retrial would occasion a greater injustice than to grant it.
6. The lapse of time since the commission of the offence.
7. The effect of the retrial on the quality of evidence and nature of the first trial whether substantial or not.
These are factors that would weigh in determining whether or not an order for retrial would be appropriate.
It has been established herein that the trial Court had no territorial jurisdiction to entertain the information against the Appellant, rendering the entire trial a nullity. There is also no doubt that the offences for which the Appellant was charged and convicted were not trivial. However, the stumbling block to an order for retrial is the charge itself, which tells a lie against the evidence led. I believe that an examination of the particulars of the alleged offences faced by the Appellant would be instructive;
COUNT 1 – PARTICULARS OF OFFENCE
Solomon Nguma, Oladimeji Ajanaku Raymond Nyekwere Williams, Raymond Integrated Limited, Obinna Obed Akwuimu (now at large) and Paul Ojehonmon (at large) on or about the 15th day of August 2016, at Lagos within the Ikeja Judicial Division with intent to defraud, conspired to obtain money from union Bank Plc using false pretence.
COUNT 2 – PARTICULARS OF OFFENCE
Solomon Nguma, Oladimeji Ajanaku, Raymond Nyekwere Williams, Raymond Integrated Limited, Obinna Obed Akwuimu (now at large) and Paul Ojehonmon (at large) on or about the 17th day of September, 2016 at Lagos within the Lagos Judicial Division with intent to defraud obtained the sum of N160,000.000 (One Hundred and Sixty Million Naira) from Union Bank Plc by falsely representing to the bank that it was paying the sum of N160,000.000 (One Hundred and Sixty Million Naira) as withholding Tax to the Rivers State Internal Revenue Service through Raynald Integrated Services Limited which pretence you knew to be false.
COUNT 3 – PARTICULARS OF OFFENCE
Solomon Nguma, Oladimeji Ajanaku, Raymond Nyekwere Williams Raynard Integrated Limited Obinna Obed Akwuimu (now at large) and Paul Ojehonmon (at large) on or about the 15th August, 2016 at Lagos which the Lagos Judicial Division with intent to defraud knowingly and fraudulently used a document captioned. “GOVERNMENT OF RIVERS STATE OF NIGERIA: RIVERS STATE INTERNAL REVENUE SERVICE RE: NOTICE OF INTENTION TO LEVY DISTRAIN” dated 15th of August, 2016 purported to have emanated from the Rivers State Internal Revenue Service with the intent that the said document may be used or acted on as genuine to the prejudice of Union Bank Plc.
The charge alleges that the offences were committed within Ikeja Judicial Division and Lagos Judicial Division. Per contra, the evidence adduced by the prosecution, in line with the facts, was to the effect that the offences were committed in Port Harcourt, Rivers State. No element of the offences, from the evidence adduced, was committed within Ikeja or Lagos Judicial Division of Lagos State. I do not see how the Appellant can be re-arraigned and retried on the same charge that tells a lie against the facts and evidence. I am therefore, satisfied that this is not a proper case to order a retrial.
Accordingly, this appeal succeeds and is hereby allowed. The conviction and sentence of the Appellant by the lower Court on 28/8/2020 is accordingly, hereby set aside.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in draft, the succinct leading judgment delivered by my learned brother: Onyekachi Aja Otisi, JCA. I endorse in toto the legal reasoning and conclusion in it.
It is discernible from the concrete evidence on record, the bedrock of the appeal, that none of the elements of the offences hurled against the appellant occurred within the territorial jurisdiction of High Court of Lagos State (The lower Court). To this end, the lower Court was not clothed with the requisite jurisdiction to entertain the case. In the eyes of the law, where a Court is drained of the jurisdiction to entertain a case, no matter the transparency, industry, sophistry and dexterity invested in it, the proceedings germinating from it will be marooned in the murky ocean of nullity. That is the misfortune of the lower Court’s decision on case which parented this appeal. The entire proceeding is liable to be vacated on the footing of being a nullity.
It is for this reason, coupled with the cogent reasons warehoused in the leading judgment, that I, too, allow the appeal in the manner decreed therein.
ABUBAKAR SADIQ UMAR, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother ONYEKACHI AJA OTISI, JCA. My brother had carefully dealt with issues nominated for determination of this appeal.
I agree with the reasoning and conclusion of my lord that the appeal succeeds and is hereby allowed by me.
The conviction and sentence of the Appellant delivered on the 28/08/2020 by the lower Court should be set aside.
Appearances:
Solomon Efe Izekor, Esq. For Appellant(s)
Respondent’s Counsel was served with Hearing Notice on 13/4/2022 but was absent. For Respondent(s)
