BAYO DADA v. FEDERAL REPUBLIC OF NIGERIA
(2014)LCN/7653(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 31st day of December, 2014
CA/L/497/2014
RATIO
EVIDENCE: PROOF OF EVIDENCE; WHETHER PROOF OF EVIDENCE ARE NOT BY THEMSELVES PIECES OF JUDICIAL EVIDENCE
The proof of evidence are not by themselves pieces of judicial evidence – see Pius V. The State (2012) LPELR-9304(CA) and FRN V. Wabara & Ors (2013) LPELR-20083) SC where the Supreme Court explained –
“Proof of evidence are not the same as the statements of the witnesses the Appellant would call at the trial. Proof of evidence are summaries of the statements of those witnesses to be called at the trial by the Appellant. It is for that reason that the Rules require an affirmation from the Applicant that the evidence against the Respondents as summarized in the proof of evidence, will be the evidence against the Respondents in respect of whose trial the Court is urged to grant leave to prefer a charge. Even at the trial, the Respondents are only entitled access to the Statements of the Prosecutions’ witnesses on the fulfillment of certain conditions” per. AMINA ADAMU AUGIE, J.C.A.
COURT: JURISDICTION; THE IMPORTANCE OF JURISDICTION TO ANY ACTION
Jurisdiction of a Court is the lifeline of any action. It has been described as the “blood that gives life to the survival of an action in a Court of law” – see Utih V. Onoyivwe (1991) 1 NWLR (Pt. 166) 166 SC. This is so because a Court without jurisdiction automatically lacks the competence to try the case – see Achebe V. Nwosu (2003) 7 NWLR (pt.818) 103; Unilorin (2003) 17 NWLR (pt.849) 214, Akeem V. Unibadan (2003) 10 NWLR (pt.829) 584, NEPA V. Edegbero (2002) 18 NWLR (pt. 789) 79 & Trade Bank Plc. V. Benilux (Nig.) Ltd. (2003) 9 NWLR (pt. 825) 416. So, the issue of jurisdiction is not a trivial thing that can be toyed with lightly; it is either a Court has jurisdiction or it does not have – see Onwudiwe V. FRN (2006) 10 NWLR (Pt. 988) 382, where Tobi, JSC, aptly observed –
“A party cannot beg or bargain jurisdiction into a matter before a Court of law; so too the adverse party cannot beg or bargain jurisdiction outside or out of a matter. Jurisdiction is an exact law that has to be applied exactly to any given case. 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 law 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. Of course, 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”. per. AMINA ADAMU AUGIE, J.C.A.
Before Their Lordships
AMINA ADAMU AUGIEJustice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJIJustice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMOJustice of The Court of Appeal of Nigeria
Between
BAYO DADAAppellant(s)
AND
FEDERAL REPUBLIC OF NIGERIARespondent(s)
AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): The Appellant and Dr. Erastus Akingbola, Former Managing Director of Intercontinental Bank Plc.,were arraigned at the Lagos State High Court under a Joint Information dated 4/5/11. The Information has 29 Counts, with Counts 17,27,28 and 29 affecting the Appellant. All four Counts allege advance fee fraud against Mrs. Anthonia Akingbola (now at large), and the Appellant, who was General Manager of Tropics Securities Ltd. The Counts allege that with intent to defraud, he obtained various sums of money from the said Bank, by falsely pretending that it was indebted to Tropics Securities Ltd., for purchase of Shares on behalf of the Bank. He challenged the jurisdiction of the Court on the following Grounds –
(i) The Counts against [him] are in respect of monies allegedly obtained by false pretences from Intercontinental Bank Plc. for the purchase of shares quoted/traded on the floor of the Nigerian Stock Exchange.
(ii) The Counts relate to Capital Market Transactions, which are under the Exclusive Legislative List (Part 1 of the Second Schedule to the 1999 Constitution as Amended).
(iii) The National assembly has the exclusive powers to legislate on matters relating to Capital Market Transaction. By virtue of Section 251(1)(s) of the 1999 Constitution and Section 7(3) of the Federal High Court Act CAP F12b LFN 20A, the Federal High Court has the exclusive jurisdiction over Counts 15, 27 28 and 29 of this information.
The Application is supported by a 7-paragraph Affidavit. In opposing it, the Respondent filed a 5-paragraph Counter-Affidavit to that effect, and the Appellant responded with a Reply on points of law. The Application was argued on 2/11/2014 and the learned trial Judge, Lawal-Akapo, J., delivered his Ruling on 2/5/2014, wherein he dismissed the Application.
In assuming jurisdiction to entertain the Information, he held as follows –
“The 2nd Defendant is seeking to quash Counts 15, 27-29 in the Information dated 4/5/11 preferred against him. The charges – – are very clear. The offences alleged in the Counts are obtaining money under false pretences the purposes for which the money is meant were not stated but the alleged falsity, which connect defunct Intercontinental Bank Plc. were stated. I find and I hold that the Counts have no basis whatsoever in Capital Market transactions.
A reading of the Counts revealed obtaining money under false pretences and the particulars of the falsity were stated on the Counts. This does not give the Counts the coloration or semblance of Capital Market transactions.”
Dissatisfied with the decision of the lower Court, the Appellant filed a Notice of Appeal containing 7 Grounds of Appeal in this Court, and he distilled 5 Issues for Determination therefrom in his Brief of Argument prepared by Prof. Taiwo Osipitan, SAN, Mrs. Olayemi Badewole and Miss Oluwatosin Adams. His Issues for Determination are as follows –
1. Whether the Learned Trial Judge was right or wrong in his decision that Counts 15, 27, 28 and 29 disclose Offences of Advance Fee Fraud simpliciter notwithstanding the fact that the Information and Proof of Evidence show that the offences in the Counts relate to purchase or non-purchase of Shares of a public quoted Company on the floor of the Nigerian Stock Exchange by a Stock Broking Company.
2. Whether the Learned Trial Judge rightly or wrongly refused to follow the recent decision of the Court of Appeal in Okey Nwosu v. FRN & 3 Ors. which is to the effect that criminal matters within the exclusive legislative list of the National Assembly are within the exclusive criminal jurisdiction of the Federal High Court.
3. Should the Learned Trial Judge ignore or be guided by the Proof of Evidence in deciding the issue of jurisdiction to entertain Counts 15, 27, 28 & 29 of the Information?
4. Whether the Learned Trial Judge rightly or wrongly relied on the decision in NDIC v. Okem Ent Ltd. (2004) 10 NWLR (Pt 880) P.107 at 185-186 in arriving at the conclusion that the Federal and State High Courts have concurrent criminal jurisdiction over criminal causes and matters on the exclusive legislative list of the 1999 Constitution as amended.
5. Whether having regard to the Capital Market transaction nature of Counts 15, 27, 28 & 29 of the Information, the State High Court rightly relied on Section 14 of Advance Fee Fraud Act to assume jurisdiction over the said Counts.
The Respondent, however, believes that a sole Issue for Determination would suffice, and formulated the following Issue in its Brief settled by Emmanuel Ukala, SAN, Godwin Obla, SAN, and Edward C. Okpe, Esq. –
“Whether the trial Court was right when it held that it had the jurisdiction to determine the counts contained in the Information against the Appellant before it”.
In my view, the Issue formulated by the Respondent encapsulates all the complaints in the Appellant’s Grounds of Appeal, and I will adopt same in dealing with this appeal. The Appellant, however, started the ball rolling with arguments on Issue 3, which centers on the lower Court’s refusal to look at the Proof of Evidence in determining the question of jurisdiction.
The Appellant argued that both Prosecution and Defence were ad idem on the need for the lower Court to look into the Proof of Evidence to decide the said issue but it adopted a different approach when it held –
“Counsel at pages 30-34 made an analysis and evaluation of some of documentary evidence proposed to be tendered by the Prosecution. I find and I hold that this exercise is premature and cannot be looked into at this stage of the proceedings. It is the law that matters for substantive hearing cannot be delved into at the interlocutory stage. See UGBEDE ALI V. THE STATE (2012) 10 NWLR (PT 1309) 589. Agube, JCA at page 624 held – – – -“.
He contends that it wrongly relied on the obiter dictum of Agube JCA in Ugbede Ali’s Case in arriving at its conclusion that the Proof of Evidence was irrelevant in the determination of the issue of Jurisdiction because Unlike this appeal where the issue of Jurisdiction is at the center stage, the bone of contention in Ugbede Ali’s Case was the issue of pre-trial bail. Even at that, this Court in Ugbede Ali’s Case endorsed the power of the trial Court to look at the Proof of Evidence even at the interlocutory stage to decide the issue of the right of the accused to pre-trial bail. At Page 616 AGUBE JCA held as follows –
“Furthermore, because of the prevalence of armed robbery within the polity, the learned trial judge was also right in refusing bail as he rightly held that:
“From the available record, particularly the proof of evidence before the Court, there is not only the likelihood of commission of the alleged offence, probability and potency of commission is higher than non-commission of same. The presumption of innocence on the accused is diluted in the mind of the Court”
The cases of Eze V. FRN (1987) 2 SCNJ 76, Solola V. State (2005) 2 NWLR (Pt.937) and Okey Nwosu v. FRN cited to the trial Judge clearly confirm that it is proper for a Trial Judge to look beyond the Information to the Proof of Evidence in deciding the Court’s jurisdiction. In Eze V. FRN (supra) the Supreme Court per Eso JSC, in its lead Judgment endorsed the perusal and appraisal of the Proof of Evidence in deciding the issue of jurisdiction when it held thus:
“I will therefore examine the issue of jurisdiction not only on the narrow compass of what evidence was available but also on the charges as laid”
In Okey Nwosu V. FRN, this Court in its lead judgment held thus – :
“The Court in determining whether it possesses the jurisdiction over an action initiated before it, has the bounden duty to peruse at the report of the investigators assigned to investigate the petition and what they discovered which formed the basis of the charges preferred against the Appellant.”
The Supreme Court in Abacha v. State (2002) 11 NWLR (Pt 779) 437 also approved reference to Proof of Evidence in the resolution of Interlocutory Application to quash a Charge.
Furthermore, that the lower Court had perused the Proof of Evidence, it would have found that it has no jurisdiction; that the Proof of Evidence is part of the Court’s record, and in determining issues, the Court is entitled and empowered to look into its record for materials that would assist it, therefore, where there are relevant materials in its record, it is proper for it to look at the Processes, citing Abiodun v. AG. Fed. (2007) 15 NWLR (Pt. 1057) 359 and AG. Enugu v. Omaba (1998) 1 NWLR (Pt.532) 83.
The Respondent argued that the lower Court’s finding is correct and cannot be faulted; that it is preposterous for the Appellant to submit that it ought to have perused the proof of evidence; that Abacha’s Case is inapplicable as it relates to an application to quash a charge; and that other cases he cited are also not applicable because they are civil cases.
The Appellant replied that the tide of judicial authorities show that proof of evidence is relevant in determining a Court’s jurisdiction; that the issue is not about evaluating evidence but whether it is entitled to ignore the proof of evidence, which it is enjoined to look at (not evaluate); that Abacha’s Case dealt with jurisdiction to entertain an Information, and supports the principle that a Court is entitled to look at proof of evidence.
Now, there are two angles to this issue, and to make any headway, we have to sever one from the other. First of all, this appeal has nothing at all to do with any evidence in the strict sense of the word – EVIDENCE.
The proof of evidence are not by themselves pieces of judicial evidence – see Pius V. The State (2012) LPELR-9304(CA) and FRN V. Wabara & Ors (2013) LPELR-20083) SC where the Supreme Court explained –
“Proof of evidence are not the same as the statements of the witnesses the Appellant would call at the trial. Proof of evidence are summaries of the statements of those witnesses to be called at the trial by the Appellant. It is for that reason that the Rules require an affirmation from the Applicant that the evidence against the Respondents as summarized in the proof of evidence, will be the evidence against the Respondents in respect of whose trial the Court is urged to grant leave to prefer a charge. Even at the trial, the Respondents are only entitled access to the Statements of the Prosecutions’ witnesses on the fulfillment of certain conditions”
In other words, there can be no squabbles about the lower Court’s Ruling in relation to any evidence seeing as no evidence had been led before it. The said matter had not reached trial stage, where evidence is proffered, before he filed the Application dated 18/5/2014 praying the lower Court – “for an Order quashing and/or striking out Counts 15, 27, 28 and 29 contained in the Information dated 4/5/2011 preferred against [him]”, and the direction of this appeal must be focused on his prayer; nothing more.
As it is, the lower Court did not go through the Proof of Evidence before it concluded that it had jurisdiction to try the Appellant for stealing. The Respondent stated at page 4 of its brief that its position on this issue “is that the trial Court in determining jurisdiction to entertain the Counts against the Appellant should only look at the Counts in the Information and not the Proof of Evidence”. The Appellant contends that “in the decision to quash or not to quash an Information, the Proof of Evidence must be examined by the Court”. The Appellant relied on the decision of the Supreme Court in Abacha V. State (supra) to buttress his position, but the Respondent has urged us to distinguish that case from this one.
Certainly, the Respondent cannot hold up itself under the weight of judicial authorities that support the Appellant’s position on the subject. Abacha’s Case also dealt with an Application to quash the Information against him and the decision of the Supreme Court is, indeed, very apt.
In Abacha’s Case, he filed an Application to quash the Information filed against him on the ground inter alia that from the proof of evidence, a prima facie case had not been made out against him. The trial Court and this Court refused the said Application, however, the Supreme Court in a 4-1 decision granted the Application and quashed the Information. Three of our former Chief Justices of Nigeria participated in the Appeal. Belgore, JSC (as he then was) stated as follows in the lead Judgment- –
“It is not the law, neither is it the justice, to say once the application is made on Information, and all necessary documents are attached, without more, the Application to prefer charge must be granted. There must be facts in the proof of evidence to justify the grant of the Application. Otherwise, indictments will always be allowed to be tried where enough particulars are absent in the proof of evidence. I must not be understood to hold that guilt of the accused must be established before approving the information to file the indictment; far from it. There must be prima facie case to be tried and the accused must be sufficiently linked to be in a situation where an explanation is necessary from him at the trial”.
He further observed as follows at pages 485 to 486 of the Law Report –
“It is not a mere formality to accept the information without considering the proof of evidence. To face a trial is not a matter to be treated with levity, a trial somehow infringes on the liberty of the subject, especially when it involves a serious offence”.
Kutigi, JSC (as he then was) quashed the Information because –
“Without looking at or reading the proof of evidence one can easily come to the irresistible conclusion that the Prosecution or the Respondent is gambling. It does not appear to know who committed the murder and who to charge in this case. If it does, the information does not point to that direction. ”
On his own part, Katsina-Alu, JSC (as he then was) had this to say –
“The proof of evidence in this case clearly do not disclose an offence against the Appellant and I do think that his trial will amount to an abuse of process. In that case, the Information will be quashed. It is a matter of great joy that the Courts have an inherent jurisdiction to prevent abuse of their process. It must be emphasized here that the judicial power, which is conferred on the Courts is intended to be used in deciding issues in genuine cases or controversies”.
The Respondent has urged us to distinguish the Abacha’s case because “the Application for determination in this appeal is an Application for the determination of the Court’s jurisdiction’ but that is a very critical issue. Jurisdiction of a Court is the lifeline of any action. It has been described as the “blood that gives life to the survival of an action in a Court of law” – see Utih V. Onoyivwe (1991) 1 NWLR (Pt. 166) 166 SC. This is so because a Court without jurisdiction automatically lacks the competence to try the case – see Achebe V. Nwosu (2003) 7 NWLR (pt.818) 103; Unilorin (2003) 17 NWLR (pt.849) 214, Akeem V. Unibadan (2003) 10 NWLR (pt.829) 584, NEPA V. Edegbero (2002) 18 NWLR (pt. 789) 79 & Trade Bank Plc. V. Benilux (Nig.) Ltd. (2003) 9 NWLR (pt. 825) 416. So, the issue of jurisdiction is not a trivial thing that can be toyed with lightly; it is either a Court has jurisdiction or it does not have – see Onwudiwe V. FRN (2006) 10 NWLR (Pt. 988) 382, where Tobi, JSC, aptly observed –
“A party cannot beg or bargain jurisdiction into a matter before a Court of law; so too the adverse party cannot beg or bargain jurisdiction outside or out of a matter. Jurisdiction is an exact law that has to be applied exactly to any given case. 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 law 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. Of course, 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 truth is that the lower Court ought to have perused the proof of evidence to determine whether there was any merit to the issue. The Information may be couched in such a way as to give it jurisdiction but the proof of evidence may paint a different scenario that would save it time and energy because if it has no jurisdiction, the entire proceedings end up a nullity. Thus, this issue is resolved in favour of the Appellant.
The Appellant also contends that if the lower Court had looked into the Proof of Evidence, it would have discovered that despite the labeling of the Counts as Advance Fee Fraud, the substratum of the Counts are Capital Market transactions i.e. trading in Securities, purchase or non-purchase of Securities/Shares by a Stock Broker and buying shares of a company with funds belonging to the Company, which are all matters within the exclusive jurisdiction of the Federal High Court. He submitted that in his Statement at page 355, he described Tropics Securities Ltd., as a Stock Broking Company that trades on the floor of Nigeria Stock Exchange [NSE], and is one of the Companies employed by I. B. Plc., to buy her Shares on the floor of the NSE; that it was in the course of acting as a Stock Broker to I. B. Plc., in respect of the purchase of its Shares that the alleged offences of Advance Fee Fraud was committed; and that by refusing to look into the Proof of Evidence, the lower Court lost the advantage of considering Statements made by witnesses on both sides on the nature of the transaction/substratum of the Counts. Furthermore, that contrary to the decision of the lower Court, the Counts, Particulars of Offences and Statements of Prosecution and defence witnesses, point to the direction of dealings in Securities/Capital market transactions i.e. –
(i) All 4 Counts allege that money was obtained by falsely pretending that the said money was “in respect of the said sum for the purchase of shares on behalf of Intercontinental Bank Plc”.
(ii) The statement of Abdulraheem Yinka Jimoh at pages 344, 346 & 348 and his Statement at pages 349-366 explicitly centered on instructions to buy shares, procedure for buying shares, buying of shares, payment for shares bought on the floor of NSE.
(iii) Documents at pages 71-79 also unequivocally show that dealings in securities/capital market issues are the basis of the Counts.
(iv) All the Counts show that the said Company, the alleged beneficiary of the Advance Fee Fraud claimed to have bought shares of the said bank, and a demand was made by her for a refund of money used to purchase Shares as requested by the Bank. Therefore, the transaction is rooted in Capital Market transactions.
He submitted that the distinction made by the lower Court between this Appeal and Okey Nwosu’s Case is one without a difference since both cases deal with Capital Market transactions, therefore, it should not have refused to follow Okey Nwosu’s Case; that by virtue of the principle of stare decisis, the lower Court is bound by the decision of this Court in Okey Nwosu’s Case; that the lower Court was duty bound to look at the nature of the transactions that gave rise to the said offence, and ought not to have treated the Counts as dealing with simple case of obtaining by false practice, more so, when its Particulars specifically disclosed that the alleged sum was for the purchase of the Shares of the Bank; and that the resolution of the Counts will definitely involve Capital Market issues on the procedure for receiving instructions, implementing instructions on the purchase of shares in Capital Market, and also whether Shares were in fact purchased or not and what quantity of Shares were purchased.
He referred us to the decision of the Supreme Court in American International Insurance Co. Ltd. V. Ceekay Traders Ltd. (1981) 5 SC 81, and submitted that issues on whether a Stockbroker can buy Shares for a customer on credit and whether a Company is at liberty to use its funds to buy its Shares on the floor of the NSE are Capital Market issues that feature in the various Counts, and the lower Court could not have been right to hold that they deal with obtaining by false pretences simpliciter that the Statement of Abdulraheem Yinka Jimoh, a Prosecution Witness, also reveals the Capital Market transactions and nature of the offences in the counts. His statement at page 347 of the Record reads as follows –
“In furtherance of our investigations, we applied to central securities clearing system Ltd (CSCS) to furnish us with the details of all the Intercontinental Bank Plc. Shares traded by Tropic Securities Ltd during the relevant period”.
As well as his Statement as follows at pages 349-366 of the Record –
“The shares bought and payments received were all Intercontinental Bank Plc. Shares bought for the Bank (Intercontinental) I’m not sure whether the Rules allow banks to buy its own shares with the bank’s money”.
He brought in the doctrine of stare decisis as propounded in Dingyadi & Anor. V. INEC & Ors. (2011) LPELR-950(SC), Atolagbe V. Awuni (1997) 9 NWLR (Pt.522) 536 & Nweke v. Nwuzi (2011) LPELR-4641 (CA), and argued that the lower Court “was wrong to have overruled [the decision in Okey Nwosu’s Case, when it held in relation to Section 251(1) and Item 12 of the Exclusive Legislative List of the 1999 Constitution that –
“Clearly the word “exclusive” was removed from the above provision. The implication of that in my view is that the criminal and civil Jurisdiction conferred by that Section is not limited or restricted to the Federal High Court.”
He proffered arguments under Issues 4 & 5 touching on the issue of the jurisdiction of the Federal High Court vis-a-vis Section 251(1) of the 1999 Constitution, and other related Issues. But these Issues were dealt with in Nwosu’s Case by this Division, where I am the Presiding Justice, and I refuse to say anything that may be construed as an affirmation or a disagreement with any decision touching on Issues covered in that Case. As far as this appeal is concerned, the Issue that calls for determination is simply whether the decision in Nwosu’s Case applies in this case.
Okey Nwosu, the former Group Managing Director of Finbank Plc., also challenged the jurisdiction of the Lagos State High Court to try him.
In its Judgment delivered on 21/11/13, this Court per Bage, JCA, held –
“What is in existence is the fraudulent conversion of funds of the Banks into shares. If the funds have turned into shares, which is an tissue in the Capital market can the High Court of Lagos State, therefore, invoke its jurisdiction on such matter, on a charge of stealing. The Respondent had admitted that the Control of Capital issues is listed as No 12 in the Exclusive Legislative List and offences relating thereto may only be properly prosecuted at the Federal High Court. Why will the Prosecution then resort to another charge of stealing at the High Court of Lagos State when the existence of the thing said to be stolen is turned under the control of Capital issue? Will there be any evidence at the High Court of Lagos State, which is different from the evidence that will be before the Federal High Court on the existence of the thing stolen. The pith and substance of the complaint of stealing as evidenced by the conversion as instructed into shares, concerns a matter of capital issue, which is Item 12 on the Exclusive Legislative List. By Section 251(1)(s) of the Constitution the Federal High Court, to the exclusion of any other Court is conferred with the jurisdiction to entertain matters over which only the National Assembly an legislate”.
He referred to Section 25 of the Interpretation Act, and further stated –
‘The law has made the prosecution of the offence or offences alleged against the Appellant exclusive to the Federal High Court. Any other charge or charges in any other guise relating to the same issue before any other Court is void ab initio, and of no effect whatsoever for lack of jurisdiction. The act of the Respondents is like putting something on nothing. No doubt it will not stay; it will collapse. See the famous dictum of Lord Denning MR. in the case of UAC V. Macfoy (1961) 3 All ER 169 at 172 .The Charges placed at the High Court of Lagos State by the Respondent against the Appellant is incurably bad for lack of jurisdiction’.
The Respondent’s position in this appeal is that the decision of this Court in Okey Nwosu’s Case does not apply to this case because the Counts against the Appellant do not relate to capital market transactions but to money belonging to I.B. Plc. which were obtained under false pretence. It argued that they revealed that no shares were actually bought but were used as a smoke screen or subterfuge to obtain money from the bank; that the thing or property obtained by false pretence is money belonging to the bank not shares belonging to the bank; that Okey Nwosu’s Case is inapplicable since the thing allegedly stolen in that case were shares not money but in this case, no fund of the Bank was converted into shares; and that another cogent reason why that case is inapplicable is that the decision in Okey Nwosu’s Case derived its authority from the decision of this Court in FRN V. Eze (1982) 3 NCLR 259 that has been set aside by the decision of the Supreme Court in Eze V. FRN (1987) 1 NSCC 249 but the attention of this Court was not drawn to the Supreme Court decision thus, it is unlikely that it would have arrived at the conclusion it reached. The Respondent also argued as follows at page 7 of its Brief –
“The Appellant has lampooned and attacked the trial Court for not following the decisions in Nwosu’s case and FRN v. Eze . It is legally inconceivable and untenable for the trial court to follow the decision of the Court of Appeal in FRN V. Eze when it was obvious that the said decision has being set aside by the Supreme Court in the case of Eze V. FRN. In the light of the fact that this Court in Okey Nwosu’s Case retried heavily on the Court of Appeal decision in FRN v. Eze (supra), which said decision has being set aside by the Supreme Court in the case of Eze V. FRN (supra), the trial Court was right not to have followed the decision of this Court in the case of Okey Nwosu (supra).
It further submitted as follows at page 8 of the Respondent’s Brief –
“Since the decision of the Supreme Court in Eze V. FRN overruled the Court of Appeal decision in FRN V. Eze, the trial court had no option but was under an obligation by doctrine of stare decisis to follow and kowtow to the Supreme Court decision in Eze V. FRN. The Court ought to be commended and not be crucified for retying on the Supreme Court decision in Eze V. FRN (supra)”.
I must ask – what is the Respondent saying? That the lower Court should be commended and not crucified for refusing to follow the decision of this Court in Okey Nwosu’s Case? This is a slap on the face of stare decisis, which is what makes the law certain and prevents it from being an ass –
see Okonjo V. Odie & Ors (1985) 10 SC 267,where Eso, JSC, stated –
“In the hierarchy of the Courts in this country, as in all other common law countries, one thing is clear, however unlearned a lower Court considers itself to be and however contemptuous of the higher Court, the lower Court is still bound by the decision of a higher Court. I hope it will never happen again whereby the Court of Appeal in this country or any lower court for that matter, would deliberately go against the decision of this Court, and in this case, even to the extent of not considering the decisions when those of this court were brought to the notice of that Court. This is the discipline of the law; that is what makes the law certain and prevents it from being an ass”.
How can a High Court refuse to abide by the decision of this Court on the ground that its decision is based on a decision that has been overruled? Surely, the Respondent’s stance is nothing but a call to judicial anarchy –
see LMB Ltd. V. PTF (2006) 5 NWLR (Pt. 974) 463, wherein it was held -“The principle of stare decisis, I think, has imposed an obligation on lower Court to be bound by the decisions of higher Courts. Deliberate refusal to so be bound amounts to judicial impertinence, which is capable of enthroning judicial rascality and anarchy in the judicial hierarchy. This must be eschewed and discouraged by Judges”.
The Respondent is practically asking the lower Court can sit on appeal over our decision, which is an anathema to the doctrine of stare decisis – see Unilag V. Olaniyan (1985) 1 SC 295, where Eso, JSC, observed-
“When a lower Court is faced with the construction of a rule in pari materia with one that has been construed by this Court, the lower Court has no option but to follow the principle laid down by this Court in its construction of that rule. What will be left for the lower Court is to apply the law as laid down by this Court to the peculiar facts of the case before it. The lower Court has no business with whether or not the decision of this Court therein is right or wrong. In the hierarchy of Courts, one principle has been established beyond par, and that is, that lower Court is bound by decision of the higher Court”.
It has also argued that contrary to the Appellant’s position, what the lower Court did without over ruling the decision in Nwosu’s Case was hold that Section 251(3) of the Constitution does not confer exclusive criminal jurisdiction on the Federal High Court with respect to matters listed in Section 251 of the Constitution; and that nowhere did it state that it was overruling the decision of this Court in Okey Nwosu’s case.
It conceded that it is bound to follow the decisions of higher Courts but added that it is not bound under the doctrine of stare decisis to follow the decisions of higher Courts when the facts/issues in those decisions does not tally with what is called for determination in the trial Court; that the trial Court is not a zombie that must follow hook line and sinker any decision of a higher Court cited before it especially, as in this case, where the case was clearly distinguishable, citing C. C. Ekwuogor Invest (Nig) Ltd. v. Asco Invest Ltd. (2011) 13 (Pt. 1265) 565 at 582 and that the lower Court, having found that the Counts against the Appellant were obtaining by false pretence, which had nothing to do with capital market transactions, was under no obligation to follow the principle of law in Okey Nwosu’s Case, which found that the Counts in the Okey Nwosu’s Case related to shares and they, therefore, constituted capital market transactions within the exclusive jurisdiction of the Federal High Court.
The Appellant replied that the point missed by the Respondent is that purchase or non-purchase of Shares/Capital Market Transactions is an integral part of the Counts; that from the Particulars of Offence, the falsity or otherwise of the alleged pretences will depend on whether the Shares were purchased or not, which raises a Capital Market issue that must be resolved; that the various Counts raise issues of Capital Market transactions; and its attempt to distinguish Nwosu’s case is artificial and distinctions without differences, as in both Nwosu’s Case and this case, alleged conversion of funds belonging to Banks are recurring Decimals.
As I said, the Appellant was arraigned with Dr. Erastus Akingbola. They both appealed against this same Ruling. The Appellant filed this separate Appeal but he is also the 2nd Respondent in Dr. Akingbola’s Appeal No. CA/L/490/2014. He did not participate in the said Appeal, however, we delivered Judgment earlier today, and I cannot think of any better way to resolve this appeal than to view it in the light of that Appeal. I wrote the lead Judgment in Akingbola’s Case, and this is what I said-
“The lower Court refused to abide by our decision in Nwosu’s Case on the ground that this Court held therein that since the alleged offences have their roots in capital market, the matter is within the purview of the Federal High Court. But as the Appellant rightly submitted, there is no Count in Nwosu’s case that mentions banking transaction, stocks and shares or even offences that have their roots in capital market. Nwosu was charged with stealing; this Court read the Proof of Evidence in that case, and held —-
Evidently, the lower Court based its decision to assume jurisdiction on what this Court discerned from the Proof of Evidence in Nwosu’s Case, which it blatantly refused to go through in this case for spurious reasons. The 26 Counts in the Information against Nwosu merely alleged stealing, and no more than that; this Court went through the Proof of Evidence, particularly the Report on the Investigators, and concluded as follows – – –
The Lower Court did not look beyond the Counts against the Appellant, and as far as it was concerned, it had jurisdiction to try him for stealing, which is all that mattered, forgetting that the allegations must be proved. This Court asked a key question in Okey Nwosu’s Case, as follows –
“Will there be any evidence at the High Court of Lagos State, which is different from the evidence that will be before the Federal High Court on the existence of the thing stolen – – -“.
In other words, the question the lower Court should have asked itself is – will the Prosecution adduce any evidence that would be different from evidence before the Federal High Court as regards the money stolen? However, the lower Court did not look at the Proof of Evidence before it.
If it had read it; it would have answered the question in the negative -No. The very fabric of the offence charged in this case – stealing is woven around banking transactions, which are linked to banking rules allegedly violated by the Appellant in the process of stealing the Bank’s money. In Nwosu’s Case, this Court went below the surface of the said Counts, and excavated the roots on which the allegation of stealing sprang from, only to find that there was nothing connecting it to the State High Court. We have a similar situation; the case before the lower Court is riddled with matters for which the Federal High Court has exclusive jurisdiction, and there is no way a charge of stealing can stand without evidence that can only be looked into and determined solely by the Federal High Court. The long and short of it is that the lower Court fell into serious error when it failed to abide by the decision of this Court in Okey Nwosu’s Case, and this issue must be resolved in favour of the Appellant”.
In this case, the four Counts against the Appellant allege as follows –
STATEMENT OF OFFENCE – COUNT 15
Obtaining by false pretence contrary to Section 1(1)(a) of the Advance Fee Fraud and Other Fraud Related Offences Act 2006.
PARTICULARS OF OFFENCE
– Bayo Dada, whilst being the General Manager of Tropics Securities Ltd. sometime in May, 2009, in Lagos within the jurisdiction of this Honourable Court with intent to defraud, obtained from Intercontinental Bank Plc the sum of N10,000,000,000:00 (Ten Billion Naira) by falsely pretending that the Intercontinental Bank Plc was indebted to Tropics Securities Ltd. in respect of the said sum for the purchase of shares on behalf of Intercontinental Bank Plc. .
STATEMENT OF OFFENCE – COUNT 27
Obtaining by false pretence contrary to Section 1(1)(a) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006.
PARTICULARS OF OFFENCE
Bayo Dada, whilst being the GM of Tropics Securities Ltd. sometime in May, 2009 with intent to defraud, obtained from I.B. Plc. the sum of N350,000,000.00 by falsely pretending that the Bank was indebted to Tropics Securities Ltd. in respect of the said sum for the purchase of shares.
STATEMENT OF OFFENCE – COUNT 28
Obtaining by false pretence contrary to Section 1(1)(a) of the Advance Fee Fraud and Other Fraud Related Offences Act 2006.
PARTICULARS OF OFFENCE
Bayo Dada sometime in May, 2009 with intent to defraud, obtained from I.B. Plc. the sum N500,000,000.00 by falsely pretending that the [Bank] was indebted to Tropics Securities Ltd. in respect of the said sum for the purchase of Intercontinental Bank Plc. shares on behalf of the Intercontinental Bank Plc.
STATEMENT OF OFFENCE – COUNT 29
Obtaining by false pretence contrary to Section 1(1)(a) of the Advance Fee Fraud and Other Fraud Related Offences Act 2006.
PARTICULARS OF OFFENCE
Bayo Dada, whilst being the G.M. of Tropic Securities Ltd sometime in May, 2009 with intent to defraud, obtained from I.B. Plc. the sum N2,500,000,000.00 [i.e.N2.5b] by falsely pretending that the [Bank] was indebted to Tropics Securities Limited in respect of the said sum for the purchase of Intercontinental Bank Plc. shares on behalf of Intercontinental Bank Plc.
Obviously, we do not have to dig up roots or Scratch under any Surface; we can see that the Counts as couched are capital market transactions.
The lower Court categorically stated as follows in its Ruling in this case –
“The offences alleged in Okey Nwosu’s case have to do with conversion and purchase of shares and stocks. The offences had their roots in capital market. The Court of Appeal held that since the alleged offences have their root in capital market, the matter is therefore within the purview of the Federal High Court. In the present case, the offences alleged are stealing, receiving and obtaining money under false pretences. This is within the confines of the State High Court and I so hold”.
If we use the lower Court’s assessment of the decision in Nwosu’s case as the yardstick, then the Appellant’s case falls squarely under its ambit. All the 4 Counts mention the purchase of shares on behalf of the Bank. There is the statement of an Investigator (supra) that he applied to CSCS for details of Shares traded by Tropic Securities Ltd during that period.
In his Statement, the Appellant, who was the GM, said that he was not sure if the Rules allowed the Banks to buy its own shares with its money. These are pointers that this case is outside the lower Court’s league and it had no business assuming jurisdiction to entertain the said Information. As the Appellant rightly submitted, the purchase or non-purchase of the shares is an integral part of the Counts against him, and the falsity or otherwise of the alleged pretences, will depend on whether the shares were purchased or not by the said Company on behalf of the said Bank. These are issues that can only be verified by the Federal High Court. and being capital market transactions are within its exclusive jurisdiction.
In the circumstances, this appeal succeeds and is hereby allowed. The decision of the lower Court in its Ruling dated 2/5/14 is set aside, and in its place, I hereby strike out the Information dated 4/5/11 preferred against the Appellant at the lower Court in Charge No. ID/148C/2011.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: My Lord Amina Adamu Augie JCA has afforded me the opportunity of reading before now the draft of the lead judgment just delivered.
The issues in contention have been meticulously addressed and the exhaustive reasonings and conclusions contained therein are agreeable to me.
I need to stress however that a clear distinction must be drawn between a summary trial and a trial on information. While in summary trial procedure the initial facts available to an accused person are virtually limited to the charge sheet, in a trial on information, the following documents are made available by the prosecution from the onset of the trial:
a. The charge containing the statement and the particulars of the offence.
b. The statements of the prosecution witnesses.
c. The statements of the accused persons.
d. List of exhibits, and.
e. All other relevant documents that the prosecution intends to rely on at the trial.
See UWAZURIKE VS A.G FEDERATION (2013) LPELR (20392) SC. and FRN VS IBORI (2014) LPELR (23214) – CA.
The whole gamut of documents that accompanies the charge or information is what is referred to as proof of evidence.
Authorities also abound, that in a trial on information as in the instant case, the court can peruse the proof of evidence in deciding whether it has jurisdiction to hear the case or whether a prima facie case is made out against the accused person. See ABACHA VS STATE (2002) 5 NWLR (PT 767) 638; EZE VS FRN (1987) 2 SCNJ 76; UWAZURIKE VS AG FEDERATION (SUPRA) AJIDAGBA VS IGP (1958) SCNLR 60; OKORO VS STATE (1988) 2 SC (PT.III) 83; OKOLI VS STATE (1992) 6 NWLR (P. 7247) 381 and JAPHET VS THE STATE (2010) LPELR (4471) CA.
In HEMBE VS FRN (2014) LPELR (22705) CA this court relying on the Supreme Court case of JIMOH ATANDA VS AG WESTERN NIGERIA (1965) NMLR 225 held that;
“when judges examine the proof of the evidence and are unable to detect the commission of a crime the state should not be granted leave to prosecute but the application ought to be refused. The courts should not become avenues for prosecuting the innocent instead of prosecuting criminals.”
See also AGBOOLA VS FRN [2014] LPELR [22932] CA. It is my firm view that the above principle of law applies with the same force where the jurisdiction of the court to entertain the case is called to question. The learned trial judge had in his ruling which is subject of this appeal held thus:
“Counsel made an analysis and evaluation of some documentary evidence proposed to be tendered by the prosecution. I find and I hold that this is premature and cannot be looked into at this stage of the proceedings. It is the law that matters for substantial (sic) hearing cannot be delivered at the introductory stage.”
The above reasoning of the learned trial judge will hold sway in a summary trial procedure but in the instant case the trial is on information where the law requires the filing of proof of evidence which by decided cases should be perused for the purpose of determining whether the court has jurisdiction or a prima facie case has been made out against the accused person. See EZE VS FRN (SUPRA). The learned trial judge therefore fell into grievous error by refusing to look at the proof of evidence on the ground that it was premature at that stage to do so.
For this and the fuller reason detailed in the lead judgment, I hold that this appeal is meritorious and it is accordingly allowed.
The ruling of the lower court delivered on 25-5-2014 is hereby set aside and the information preferred against the appellant in charge NO ID/148C/2011 is hereby struck out.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I had read the draft judgment of my learned brother Justice AMINA ADAMU AUGIE, JCA and I agree with the reasoning and conclusion reached; the learned trial Judge fell into grave error when he elected not to fully read and decipher the decision in NWOSU V FRN in CA/L/601/11 and the three (3) volumes of Proof of Evidence filed along with the information before him.
Allowing the ruling to stand would lead to two criminal matters running paripasu – in two separate courts of co-ordinate jurisdiction, thereby resulting in a mockery of our Criminal Procedure Law in Nigeria.
I too allow the appeal and abide by consequential orders in the lead judgment.
Appearances
Prof. Taiwo Osipitan (SAN) with
Mrs. Olayemi Badewole, Mrs. Oluwatosin Daudu,
and Mrs. Foluke Toye-SalamiFor Appellant
AND
E. C. Ukala (SAN) with Chief Godwin Obla (SAN),
E.C. Okpe, Esq., Miss O. J. Iheko,
and Damilola Amore, Esq.For Respondent
