DANIEL v. FRN (2022)

DANIEL v. FRN

(2022)LCN/16367(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Tuesday, April 12, 2022

CA/IB/264C/2021

Before Our Lordships:

YargataByenchitNimpar Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Between

OTUNBA JUSTUS OLUGBENGA DANIEL APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO:

JURISDICTION CAN BE RAISED AT ANY STAGE OF THE PROCEEDINGS

THE ACKNOWLEDGEMENT OF THE COURT OF THE AUTHORITY OF EFCC TO PROSECUTE OFFENDERS

The authority of the EFCC to prosecute offenders in the name of the Federal Republic of Nigeria for offences constituting financial crimes committed under the Criminal Code or the Penal Code was further acknowledged by this Court in its recent decision in: Shema Vs FRN (2018) 1 SC (Pt.1) 1 AT 38 – 39, where it was held, inter alia, per Bage, JSC:
“… I wish to reiterate the well settled position of this Court in Nyame Vs FRN (2010) 3 SC (Pt.1) 78.
In this case, this Court indicated and very clearly, that there is nothing here that prevents the EFCC from prosecuting offenders in the name of the “Federal Republic of Nigeria” being the agency responsible for co-ordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with economic and financial crimes in the Federal Republic of Nigeria by virtue of Section 1 (2) (c) of the EFCC Act. YARGATA BYENCHIT NIMPAR, J.C.A

A COURT’S JURISDICTION IIN THE STATUTE WHICH CREATES IT AND NOT OPEN ENDED

The law is also settled that a Court’s jurisdiction is prescribed, embedded or engraved in the statute which creates it. It is usually circumscribed and not open ended and at large.
Ordinarily, and without express provisions of the creating statute, a Court’s jurisdiction should not be extended beyond its territorial limit. What is more, jurisdiction is not subject to emotion, sentiment, whims and caprices of anyone. It is firmly rooted and must be in accordance and consonance with laid down provisions in the creating statute.
The apex Court also reiterated the guiding principles and stated how to resolve the issue of venue of the trial of an accused person was restated by the apex Court in the case of DARIYE V. FRN (2015) LPELR-24398(SC) thusly:
“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 tore-iterate the views of this Court inNyame 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.” Per NWEZE , J.S.C. YARGATA BYENCHIT NIMPAR, J.C.A

THE GENERAL RULE OF THE INTERPRETATION OF STATUTES

See ABEGUNDE V. ONDO STATE HOUSE OF ASSEMBLY & ORS (2015) LPELR-24588(SC) wherein the apex Court held:
“The general rule of interpretation of statutes has also been laid by this Court in several decisions and the rule is that where the words of a statute are plain, clear and unambiguous, the Court shall give effect to their literal meaning. It is only when the literal meaning may result in ambiguity or injustice that the Court may seek internal aid within the body of the statute itself or external aid from statutes inpari-materia in order to resolve the ambiguity or avoid doing injustice. See OGBUNYIYA v. OKUDO (1979) 6-9 SC 32 AND OGUNMADE v. FADAYIRO (1972) 8-9 SC 1.” Per MOHAMMED, J.S.C. YARGATA BYENCHIT NIMPAR, J.C.A

A PERSON ALLEDGING FRAUD MUST SPECIFICALLY PLEAD IT

The fact is that fraudulent intention is an ingredient and it must be established, fraud is defined in the case of OTUKPO V. JOHN & ANOR (2012) LPELR-25053(SC) wherein the apex Court held thusly:
“Fraud is defined as an intentional perversion of truth for the purposes of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. It is something dishonestly and morally wrong. Fraud has to be pleaded with particularity and established in evidence. A person alleging fraud is not only required to make the allegation in his pleadings but must set out particulars of fact establishing the alleged fraud, so that the defendant goes into Court prepared to meet then. See Olufunmise vs. Falana (1990) 3 NWLR, Pt.136, pg.1 UAC vs. Taylor (1936) 2 WACA pg. 170 Usenfowokan vs. Idowu (1969) NMLR, P9.77 Ntuks vs. N.P.A (2007) 13 NWLR, pt.1051, pg. 332 Where a person alleging fraud does not specifically plead it, a Court cannot of its volition raise it, as a Court is bound to consider only issues raised on the pleadings before it. Obijuru vs. Ozims (1985) 2 NWLR, pt. 6, pg. 187 Nwadike vs. Ibekwe (1987) 4 NWLR, Pt. 67, pg. 718 Abacha vs. Fawehinmi (2000) 6 NWLR, pt. 660, pg. 228 Section 138 of the Evidence Act.” Per ADEKEYE, J.S.C. YARGATA BYENCHIT NIMPAR, J.C.A

THE PRINCIPLE OF LAW ON A PRIMA FACIE CASE

A prima facie case was defined in the case of ALEX V. FRN (2018) LPELR-43709(SC) as follows:
“Ever since Abbot FJ, in Ajidagba v Police (1958) 3 FSC 5, approvingly, adopted the definition of the phrase “prima facie” case from the Indian decision in Sher. Singy v Jitendranathsen (1931) I.L. R, 59 Calc 275, subsequent decisions have, consistently, endorsed it. It, simply, comes to this: evidence discloses a prima facie case when it is such that if un-contradicted and if believed, will be sufficient to prove the case against the defendant. See Ohwovoriole v FRN [2003] 2 NWLR (Pt 803) 176; [2003] 1 Sc (Pt 1) 1; (2003) LPELR-SC.392/2001, Ajiboye v State [1994] 8 NWLR (Pt. 364)587, Ekwunugo v FRN [2009] 15 NWLR (Pt 1111) 630; [2008] 7 SC 196, Tongo v COP (2007) LPELR-SC.105/2000 , Abacha v State [2001] 3 NWLR (Pt 699) 35 and Daboh v State [1977] 5 SC 197.” Per NWEZE, J.S.C. YARGATA BYENCHIT NIMPAR, J.C.A

THE REQUIREMENT A COURT CAN DO WHEN NO CASE SUBMISSION IS MADE

All that the Court is required to do when a no case submission is made is to determine whether the evidence adduced by the prosecution is sufficient to warrant an explanation from the accused person, the Court Per TOBI, JCA (as he then was, went to be JSC and now of Blessed Memory) in the case of ONAGORUWA V. STATE (SUPRA) stated as follows:
“The Federal Supreme Court adopted the above definition in AJIDAGBA VS. INSPECTOR GENERAL OF POLICE (1958) SCNLR PAGE 60 and the Supreme Court also adopted it in ADEYEMI VS STATE (1991) 6 NWLR PART 195 PAGE 1 AT 35. The expression “ground for proceeding” in sign, in my view should be determined in the strict context of the charge and the prosecution. If there is no sufficient evidence linking the accused with the statutory element or ingredients of the offence and I mean statutory elements and ingredients, a Court of trial must as a matter of law, discharge him. Ithas no business searching or scouting for evidence that is nowhere and therefore cannot be found. That will not be consistent with our adversary system. It is inquisitorial in design and in execution.” YARGATA BYENCHIT NIMPAR, J.C.A

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Ogun State High Court sitting in Abeokuta and delivered by HON. JUSTICE MABEKOJE on the 17th May, 2019 wherein the lower Court in its ruling dismissed in part the Appellant’s No Case Submission. The Appellant dissatisfied with the decision, filed a Notice of Appeal dated the 23rd day of September, 2021 setting out 16 grounds of appeal.

Facts leading to this appeal are straight forward and amenable to brief summary. The Economic and Financial Crimes Commission (EFCC) received petitions bordering on abuse of office, criminal breach of trust, financial impropriety and money laundering against the Appellant (See Exhibit 158-161), after investigation a 38 counts information was preferred against the Appellant on 2nd April, 2012. The Respondent’s case is that the Appellant, in his capacity as the State Governor is responsible for land approval in Ogun State, but fraudulently converted some parcels of Land to purposes not authorized by the Land Use Act, allocating land to himself, family members and associates. The Appellant was also allegedto have (a) knowingly made false declaration of his assets to EFCC operative, (b) used his office to corruptly confer undue advantage on some associated companies and (c) stolen various sums of money and properties of the Ogun State Government. The Prosecution called witnesses and tendered documents then closed its case on 30th November, 2018 and thereafter, the Appellant made a no case submission which was opposed by the prosecution and the trial Court in its ruling dismissed the no case submission in respect of Counts 1, 2, 3, 5, 6, 12, 14, 15, 16, 25, 26, 27, 28, 29, 30, 31 and 32 while the no case submission in respect of Counts 4, 7, 8, 9, 10, 11, 13, 17, 18, 19, 20, 21, 22, 23 and 24 as contained at pages 2226(a)- 2226(n) of the Record of Appeal was upheld. The Appellant aggrieved with the said ruling brought the instant appeal.

Pursuant to the Rules of the Court, the parties filed and exchanged their briefs which were adopted at the hearing of the appeal. The Appellant’s brief settled by DEJI ENISENYIN, ESQ., is dated 13th day of October, 2021 and filed on the same day. The Appellant distilled 8 issues for determination as follows:
1. Whether learned Judge rightly or wrongly held that the Appellant was precluded from raising jurisdictional issues at No Case Submission stage. (Distilled from ground 1)
2. Whether learned trial Judge rightly held that the Court below is seized of jurisdiction to try counts 1, 2, 3, 5, 6, 12, 25-32 of the Further Amended Information, notwithstanding the fact that the counts (state offences) filed on the strength of a fiat which was issued in favour of EFCC by Attorney General of Ogun State were brought in the name of the Federal Republic of Nigeria. (Distilled from grounds 3 and 4).
3. Whether learned trial Judge rightly assumed jurisdiction over Counts 14-16 of the Further Amended Information despite lack of evidence that the offences alleged in the Counts were committed within the territorial jurisdiction of the Court below and that the Appellant was not arrested or interrogated for any offence under EFCC Establishment Act. (Distilled from grounds 5, 6 & 11)
4. Did the learned trial Judge rightly hold that counts 1, 2, 3, 5, 6 and 12 of the Further Amended Information disclosed offences contained in a written Law (Land Use Act, 1978) as towarrant the Appellant being requested to enter his defence to the counts. (Distilled from grounds 7, 8 & 9)
5. On the assumption that the offences of fraudulent conversion of Land to a purpose not authorized by the Land Use Act is contained in a written law, whether learned trial Judge rightly held that a prima facie of the commission of the offence was established by the prosecution against the Appellant under counts 1, 2, 3, 5, 6 and 12 of the Further Amended Information.(Distilled from grounds 12 and 13)
6. Assuming the offences alleged in Court(sic) 14-16 are within the territorial jurisdiction of the Court below, whether learned trial Judge rightly held that prosecution established a prima facie case in respect of the Counts against the Appellant. (Distilled from ground 14)
7. Whether learned trial Judge having acquitted the Appellant on counts 17 and 19 rightly held that the prosecution established a prima facie case against the Appellant in respect of counts 25 and 26 of the Further Amended Information despite the fact same evidence were adduced in proof of the four Counts. (Distilled from ground 15)
8. Whether given thecircumstance of the case where prosecution witnesses testified in favour of the Appellant, learned trial Judge rightly held that a prima facie case of stealing by conversion of the various sums of money was made against the Appellant by prosecution in counts 27-32. (Distilled from grounds 10 & 16)

The Respondent’s brief settled by ADEBISI ADENIYI, ESQ., dated 3rd day of November, 2021 and filed on the same day. The Respondent formulated 3 issues for determination as follows:
1. Whether the learned trial Judge was not right when his Lordship held that the jurisdictional issue raised by the Appellant along with his no case submission was improperly raised. (Distilled from ground 1)
2. Whether the learned trial Judge was not right when his Lordship held that the High Court of Ogun State had both the constitutional and jurisdictional competence to entertain the information preferred against the Appellant. (Distilled from grounds 2, 3, 4, 5, 6, 7, 8, 9, 11 and 14).
3. Whether the lower Court was wrong in holding that the Respondent (prosecution) has made out a prima facie case against the Appellant in counts 1, 2, 3, 5, 6, 12, 14, 15,16, 25, 26, 27, 28, 29, 30, 31 and 32 of the Further Amended Information to warrant his being called upon to enter his defence. (Distilled from grounds 10, 12 13, 15 and 16)

Thereafter the Appellant filed a reply brief dated 9th day of November, 2021.

APPELLANT’S SUBMISSION
ISSUE ONE
The Appellant submits that the trial Judge relied on the decision in ADIGWE V. FRN (2018) LPELR-43849 to conclude that the issue of jurisdiction is outside the scope of a No Case Submission, but contrary to the above decision, jurisdiction is a threshold issue which can be raised at any stage of the proceedings and even raised for the first time in the apex Court, consequently, the issue of jurisdiction is within the scope of No case Submission. The Appellant relied on NNAKWE V. STATE (2013) 18 NWLR (PT. 1385) 1, EGUNJOBI V. FRN (2013) 3 NWLR (PT. 1342) 5 SC and GALADIMA V. TAMBAI (2000) 6 SC (PT. 1) 196 and urge the Court to resolve the above issue in favour of the Appellant.

ISSUE TWO
Arguing this issue, the Appellant submitted that the proper complainant was not before the Court and consequently the Appellant is entitled to a discharge andacquittal on counts 1-12 and 27-32 of the Further Amended Information, however, the trial Judge held that notwithstanding the fact that the prosecution (EFCC) applied for and obtained fiat from the Attorney General of Ogun State to prosecute State offences the Information was rightly initiated and prosecuted in the name of the Federal Republic of Nigeria and the Court relied on Section 211(1)(b) of the 1999 Constitution.

It was the argument of the Appellant that the exercise of the EFCC’s prosecutorial powers was not the issue before the Court below rather the core issue was whether having voluntarily sought and obtained fiat of the Ogun State Attorney General to prosecute State offences, can EFCC still prosecute those State offences in the name of Federal Republic of Nigeria? The Appellant relied on ANYEBE V. STATE (1986) 17 NSCC 37, to submit that a State cannot prosecute Federal offences in the name of the State and a Federal agency cannot prosecute State offences in the name of the Federal Republic of Nigeria where the agency is a donee of a fiat issued by the State Attorney General as held in OKOROMA V. UBA (1999) 1 NWLR (PT. 587) 359 and OKAFOR V. STATE (1976) 5 SC 13. Continuing, the Appellant contends that the cases of SHEMA V. FRN, AMADI V. FRN, COMPTROLLER OF PRISONS V. ADEKANYE which the trial Judge relied on are not on all fours with the instant appeal hence inapplicable.

Predicated on the above, the Appellant submits that the decision of the trial Judge that the name of the Federal Republic of Nigeria was only used as a nominal complainant is not borne out of record because no where in the Record of Appeal did the parties raise issue of the status of the Federal Republic of Nigeria, the trial Judge suomotu raised the issue and decided that Federal Republic of Nigeria is nominal complainant without affording the parties opportunity to address it. The Appellant urge the Court to hold that Counts 1-13, 27-32 which are State offences were wrongly initiated in the name of Federal Republic of Nigeria and to also resolve this issue in favour of the Appellant.

ISSUE THREE
In arguing this issue, the Appellant submits that the trial Judge wrongly assumed jurisdiction over issues of the Appellant’s alleged non-declaration of assets which took place in Federal Capital Territory, Abujaduring the Appellant’s interrogation and the fact that the Appellant was not arrested in connection with offences under EFCC’s Act. The Appellant also submits that his submission on the issue of territorial jurisdiction was overruled by the trial Judge who reasoned and held that the Court below had territorial jurisdiction to entertain the Counts because the Appellant was arrested for offences allegedly committed in Ogun State and the trial Court relied on NJOVENS V. STATE and NYAME V. FRN.Continuing, the Appellant contends that contrary to trial Judge’s decision, the place of commission of the offence which resulted in the Appellant’s arrest and place of the Appellant’s arrest are irrelevant when interpreting Section 27(1) and (3) (b) of EFCC Act rather the core issue is whether any of the ingredients of the offence of knowingly making false asset declaration alleged against the Appellant vide filing and submission of the “Form A” took place in Abeokuta Judicial Division of Ogun State.

Further on that, it is clear from the records that all the alleged offences began and ended in the Federal Capital TerritoryAbuja, therefore, the Court below lacked the territorial jurisdiction to entertain Counts 14-16 and should have declined entertaining the suit as held in IBORI V. FRN (2009) 3 NWLR (PT. 1128) 283, N.B.C. PLC V. NWANERI (2000) 14 NWLR (PT. 686) 30 and NGIGE V. CAPITAL BANCORP LTD (1997) 7 NWLR (PT. 609) 71.

The Appellant submitted that the trial Judge also relied on Section 64(c) of the Criminal Procedure Law of Ogun State and Section 12 and 12a of the Criminal Code of Ogun State to conclude that the offences alleged in Counts 14-16 are within the territorial Jurisdiction of the High Court of Ogun State to try, however, these provision are only relevant where the issue of inter-state jurisdiction raised by the Appellant has been satisfactorily resolved in favour of Ogun State High Court. On the same score, the Appellant argued that a fundamental requirement of Section 27(1) of the EFCC (Establishment) Act is that the Defendant must have been investigated for offences under the said Act as opposed to offences under different Acts or criminal legislation, therefore, where as in instant appeal, it was not proved that the Appellant was arrested and interrogatedfor offences under the EFCC Act the trial Court lacks jurisdiction to try the Appellant.

It was the submission of the Appellant that the definition section which is Section 46 of the EFCC Act so relied on by the trial Judge in his ruling is inapplicable to the instant appeal, for the obvious reason that it merely defines economic crimes which it has not created any offence under the EFCC Act and Section 27(1) of the Act applies only in cases where a person has been arrested for offences under this Act. Furthermore, the Appellant submitted that since the Appellant was not arrested or arraigned on account of any offence under EFCC Act, there was no basis for the lower Court’s directive that the Appellant should enter his defence in respect of Counts 14-16. The Appellant urge the Court to resolve this issue in favour of the Appellant.

ISSUE FOUR
Arguing this issue, the Appellant submits that the trial Judge by virtue of Section 36(12) of the 1999 Constitution a person cannot be arraigned for an act which has not been criminalized in a written law, hence, there is no provision in the Land Use Act which criminalises fraudulent conversion ofland by the person in the office of State Governor to a use not authorized by the Act and no legal basis for the Appellant’s arraignment for a non-existing offence, therefore, the Appellant’s arraignment in respect of counts 1, 2, 3, 5, 6 and 12 run foul of the provision of Section 36(12) of the 1999 Constitution and decided cases on unconstitutionality of arraigning a person for a non-existing offence in a written law. The Appellant referred the Court to AOKO V. FAGBEMI (1961) 1 ALL NLR 400, IFEGWU V. FRN (2001) 13 NWLR (PT. 729) 131, ASAKE V. NIGERIAN ARMY COUNCIL (2007) 1 NWLR (PT. 1015) 424 and BODE GEORGE V. FRN (2014) 5 WNLR (PT.1399) 21. Continuing, the Appellant submitted the trial Judge also relied on the provision of the Criminal Code of Ogun State (Section 434) to uphold the constitutionality of counts 1, 2, 3, 5, 6 and 12 of the Further Amended Information, however, it is improper for the trial Judge to combine the provision of a Federal and State enactment in order to create the offence of fraudulent conversion of land by Trustee because if it was the intention of the makers of the Land Use Act to criminalise such acts, it would havebeen expressly provided for in the Act and the case ofAKWULE that the trial Judge relied on is inapplicable.

Again, the Appellant argued that there is no provision in the Land Use Act which appoints the Appellant as trustee of Land in the State and Section 1 of the Land Use Act heavily relied on by the trial Judge has not specifically named the person of the Appellant as a Trustee of the State land as all that Section 1 of the Act has provided for is that land in a State should be held by the State Governor in trust and administered for the use of all Nigerians, therefore, the person of the President or a State Governor cannot be sued but their offices can be sued. The Appellant relied on Section 308(2) of the 1999 Constitution, TINUBU V. IMB SECURITIES PLC (2001) 16 NWLR (PT. 740) 670, SHOGABA ABDULARAMAN V. THE MINISTER OF INTERNAL AFFAIRS (1982) 3 NCLR 915 and THE PRESIDENT OF FEDERAL REPUBLIC OF NIGERIA V. ADESANYA (1982) 3 NCLR 306.

It is the argument of the Appellant that improper revocation of a person’s interest in a land is also not a crime under the Land Use Act because the Act makes provision for priority among competing interest ina land and for dealing with wrong revocation or acquisition of land, inconsistent grants of land by a State Governor as held in DANTSOHO V. MOHAMMED (2003) 6 NWLR (PT. 817) 615 and IBRAHIM V. MOHAMMED (2003) 6 NWLR (PT. 817) 457. Furthermore, the Appellant submits that in the absence of any provision in the Land Use Act criminalising the fraudulent conversion of land for a purpose not authorized by the Act, the trial Judge ought not to have upheld constitutionality of the count 1,2,3,4,5,6 and 12 of the Further Amended Information and urge the Court to resolve this issue in favour of the Appellant.

ISSUE FIVE
The Appellant submits that Section 5(1) of the Land Use Act authorized the Governor to Allocate Land to all Nigerians for all purposes, therefore, there is also no provision in the Act which preclude or criminalises allocation of Land to the person of a State Governor or his wife or associated companies who are Nigerians and this explains why the Appellant has not been requested by the Court below to enter his defence in respect of Counts 4, 7, 8, 9 10 11 and 13. According to the Appellant, the alleged non-observance of due process in acquiringexisting interest in land or re-allocation to the State Governor and his associates, misinforming the owners of existing interest that land is required for public purpose as well as payment of compensation to owners of existing interests in land from government’s purse are not crimes under the Land Use Act and the prosecution did not tender a single document/letters signed by the Appellant revoking existing interest in the various land, however, the various letters of revocation tendered, show that contrary to the prosecution’s case, officials of Bureau of Lands and Survey signed the letters of revocation.

Again, the Appellant argued that it was also not proved that use of government funds to pay compensation to holders of existing interest in the land was carried out by the Appellant and it was not proved that it was the Appellant who authorized the Regeneration Church of God of Abraham’s tabernacle to allegedly annex set back and open spaces as part of the land allocated to it, hence, the prosecution did not adduce any evidence that the Appellant either allocated various lands to himself and his associates with the knowledge ofexisting interest in such land. The Appellant contends that signing a certificate of occupancy is not a crime and the Appellant, his wife and associates are all Nigerians who are entitled to apply and be allocated land subject to various terms and conditions prescribed in their various letters of allocation. Furthermore, the Appellant submits that failure of the prosecution to prove that all the allegations mentioned in the case was committed by the Appellant, the Court below ought to have discharged and acquitted the Appellant on the counts and also urge the Court to resolve this issue in favour of the Appellant.

ISSUE SIX
The Appellant contends that he was charged under Section 27(3)(a) which deals with making false declarations as alleged in Exhibit 184, however, from the record of the Court, PW20 testified that the Appellant failed to disclose his interest in some companies which does not support the particulars of the offence of misrepresentation/false declaration as contained in the counts. Further on this issue, the Appellant submits that whereas the offence charged is knowingly making false declaration of assets while the evidence adduced asfound by the trial Judge was the Appellant’s non-declaration of assets which are two separate offences as provided for under 27(3)(a) and (b) of the Act respectively, consequently, it is trite that where evidence adduced is at variance with the fact in issue, the evidence goes to no issue and ought to have been disregarded by the Court below as held in ITODO V. STATE(2014) LPELR-22343(CA), from the foregoing, no prima facie case of knowingly making false declaration of assets was established against the Appellant by the prosecution, therefore, the trial Judge ought not to have called the Appellant to enter his defence to Count 14-16.

It was the argument of the Appellant that at the time he was filling the asset declaration form, he informed the PW20 that the named medication he is on is prone to forgetfulness or loss of memory and during trials, the Appellant’s Counsel submitted that in the absence of rebutting evidence by the prosecution, the essential ingredients of the offence charged “knowingly making false declaration of assets against the Appellant was not established, however, the trial Judge overruled the submission and heldthat the burden of proving the effect of the medicine on the Appellant’s memory was strictly on the Appellant because the facts in issue were within the Appellant’s personal knowledge alone. Continuing, the Appellant submits that in the light of the information given by the Appellant on the name of the medicine used by him and its effect on his memory, such facts were no longer within the strict knowledge of the Appellant but now within the mutual knowledge of the Appellant and the prosecution and the burden of proving was on the prosecution because it is trite that where prosecution and the defence both have information on a fact in issue, the incidence of burden of proof will not shift to the defence as held in JOSEPH V. IGP (1957) NRNLR 170, therefore the trial Judge in this circumstance wrongly placed the burden of proof on the Appellant.

The Appellant submitted that the trial Judge further likened the Appellant to a defendant who relies on the defence of insanity, thereby placing the burden of proof on the Appellant as provided in Section 139(3) (c), the case of POPOOLA V. STATE (2014) ALL FWLR (PT. 715) 200, DANBABA V. STATE (2018) 11NWLR (PT. 1631) 426 and USMAN V. STATE (2018) 15 NWLR (PT. 1642) 320, however, the Appellant did not raise the defence of insanity hence, there was no legal basis for trial Judge’s application of rules of burden of proof of insanity because it is trite that every person enjoys presumption of sanity as provided in Section 27 of the Criminal Code. Further on this issue, the Appellant argued that he introduced the issue of effect of the particular medicine on his memory in order to show that he did not and could not have knowingly made false declaration of his assets even though the actus reus of the offences could be established but there is no mens rea, therefore, the burden of proving that the Appellant intentionally or knowingly made false declaration of his assets was on the prosecution in view of the presumption of innocence which the Appellant enjoys and the burden of establishing a prima facie case which the Respondent has, however, the burden was not discharged because of prosecution’s failure to investigate the medicine and adduce evidence in rebuttal of the information on the effect of the medicine on the Appellant’s alleged memory loss.

The Appellant reproduced the evidence of PW20 under cross-examination where he testified that there was an investigation and he was not a member of team. The Appellant submits that none of the member of the investigation team was called upon to give evidence regarding the Appellant’s loss of memory and forgetfulness which can be likened to a prosecution that neglect to investigate alibi raised by an accused person and it is trite that the consequence of failure to investigate such alibi is that it will be upheld as true. The Appellant relied on ATTAH V. STATE (2010) 10 NWLR (PT. 1201) 190, OLAIYA V. STATE (2010) 3 NWLR (PT. 1181) 423 and AMODU V. STATE (2010) 2 NWLR (PT.1177)47.

Relying on NWATURUOCHA V. STATE (2011) 6 NWLR (PT. 1242) 170, AMADI V. THE STATE (1993) 8 NWLR (PT. 314) 644 and ALABI V. STATE (1993) 7 NWLR (PT. 307) 511 to submit that the burden of proving all elements of an offence especially the mind is on the prosecution which is contrary to the trial Judge placing the burden of proof on the Appellant. The Appellant contends further that Section 27(3) (a) of the EFCC Act has not created a strict liability offence,therefore, the prosecution has burden of proving both the mens rea and actus reus of an offence charged especially the mens rea which deals with the “knowingly” is associated with deliberate acts of the Appellant to commit the alleged offences in the said Counts. The Appellant relied on BLACKS LAW DICTIONARY P.888, SHERRAS V. DE RUTZEN(1895) 1 QB 918 and TOWER CABINET CO V. INGRAM (1949) 2KB 667.

Furthermore, the Appellant submitted that the trial Judge blurred the distinction between the Appellant and the companies which he has interest in and which in turn invested in the other companies mentioned in the Counts for instance, the Appellant as a person is not an investor in Golf Place Resorts Limited and conference Hotels Limited (Count 14) however, Kresta Laurel Limited is a shareholder in Golf Place Resorts Limited and Conference Hotels Limited and the Appellant is an investor in Kresta Laurel and being an investor in Kresta Laurel does not make the Appellant a shareholder in Golf Place Resort and Conference Hotels Ltd as to impose a duty on him to disclose interest in the companies because it is trite principle of law that a company is distinct fromits shareholder as held in SALOMON V. SALOMON (1897) AC 22. Consequently, the Appellant urge the Court to resolve this issue in favour of the Appellant.

ISSUE SEVEN
The Appellant submits that the trial Judge held that once the sums of N32.4M and N29M were in the Appellant’s possession, there is a presumption that they were corruptly obtained/received, therefore, the Appellant has the burden of proving that the sums were not corruptly obtained by him, while on the other hand, the trial Judge had initially acquitted the Appellant on Counts 17-24 which alleged that the Appellant corruptly used his position as State Governor to confer undue benefits on the two companies in respect of transactions between Aron Nigeria Limited and the two companies. Continuing, the Appellant submitted that the same and specific sums of N32.4 Million and N24 Million were the subject of counts 17 and 19 which the Appellant was discharged and acquitted of the counts because there was no supporting evidence.

Again, the Appellant reproduced the evidence of PW32 under cross-examination to submit that where the evidence of a prosecution witnesses have been destroyedand discredited, the prosecution has no case against the Appellant as held in ONAGORUWA V. STATE (1993) 7 NWLR (PT. 303) 49 and ADEYEMI V. STATE (1991) 6 NWLR (PT. 195) 1. The Appellant further submit that Section 53 of the Corrupt Practices and Other Related Offences Act only applies where the prosecution discharge the initial burden of introducing evidence in support of corrupt receipt of the said sums of money such as proof of payment of gratification to the Appellant by Aron Nigeria Limited as reward or on account of the contract awarded to Aron by Ogun State Government and failure to discharge this burden by the Respondent, the Court below would have no basis to refuse its application.

According to the Appellant, it was the same evidence which trial Judge relied on in discharging and acquitting the Appellant on counts 17 and 19 that he also utilized in holding that there is a prima facie case against the Appellant in count 25 and 26 which violates the cardinal rule on consistency in treatment of evidence. The Appellant relied on FRN V. IWEKA (2013) 3 NWLR (PT. 1341) 285 andOFUANI V. NIGERIAN NAVY & ANOR (2006) LPELR-5813 (CA). The Appellant urge theCourt to resolve the Appellant’s favour and discharge him on counts 25 and 26.

ISSUE EIGHT
In this issue, the Appellant argued that notwithstanding the Appellant’s arraignment of stealing, the prosecution did not tender any petition written against the Appellant by the victim of the alleged offences that he fraudulently converted he various sums in counts 27-32 to his own use and to the use of third parties and none of the prosecution witnesses testified that the payments were fraudulently obtained/converted by the Appellant to the use of the Appellant/third parties and also there is no evidence the Appellant and the third parties were not entitled to the payments made by the State Government, therefore, there is no presumption of stealing of the various sums of money which the prosecution could have legitimately invoked against the Appellant.

According to the Appellant, in order to establish a prima facie case of stealing by conversion, the prosecution ought to adduce evidence to the effect that the various sums of money were either physically in possession of the Appellant or were entrusted to the Appellant who thereafter convertedthem to his use and that of third party and cited AKOREDE V. COP (1974) 10 CCHCJ 1563 and ADENUBI V. QUEEN (1963) 1 ALL NLR 316. The Appellant reproduced the evidence of PW22, PW24, PW25, PW27 and PW29 to submit that the prosecution witnesses testified on how approvals were given and due process was followed by government officials for payment of the various sums of money as well as the purposes for payment which negates allegation of stealing by conversion made against the Appellant.

Furthermore, the Appellant submits that all the testimonies of prosecution witnesses were brought to the attention of the trial Judge however, the trial Judge overruled the no case submission and it is trite that evidence of prosecution witnesses which are favourable to the Defendant provide good platform for a successful no case submission as held in UBANATU V. COP (2000) FWLR (PT. 1) 138.

The Appellant urge the Court to resolve this issue in favour of the Appellant by discharging and acquitting him of Counts 27-32 of the Further Amended Information.

RESPONDENTS’ SUBMISSION
ISSUE ONE
In arguing this issue, the Respondent submits that the trial Courtrelied on ADIGWE V. FRN (2018) LPELR-43849 to hold that it was improper for the Appellant to raise jurisdictional issues at the time of his no case submission. The Respondent also commended the trial Court for considering the issues raised by the Appellant even after holding that the issue of jurisdiction was improperly raised by the Appellant. The Respondent relied on CA/IB/285C/2019 a case between OTUNBA JUSTUS OLUGBENGA DANIEL V. FRN delivered on 27th March, 2020 (unreported) to support the decision of the trial Court. The Respondent also raised the issue of abuse of Court process as the Appellant is raising the same issue for the second time.

Further, the Respondent submits that at the stage of a no case submission, the Court is not to express any opinion on the evidence before it. The Respondent relied on FRN V. MARTINS (2012) 14 NWLR (PT. 1320) 287 and urge the Court to resolve this issue in favour of the Respondent.

ISSUE TWO
The Respondent submits that the Appellant raised an issue on the power of the EFCC to prosecute State offences in the name of the Federal Republic of Nigeria, however, this issue has been dealt with in theRespondent’s written address at the lower Court as contained in pages 2283-2287 of Vol. IV of the Record of Appeal and the Respondent further relied on SHEMA V. FRN (2018) 9 NWLR (PT. 1682) 337,ALEX V. FRN (2018) 97 NWLR (PT. 1618) 228 and IKPE V. FRN (2018) LPELR-45567(CA) to urge the Court to discountenance the argument of the Appellant. Continuing, the Respondent submitted that the Appellant raised the issue of lack of territorial jurisdiction of the High Court of Ogun State to entertain counts 14-16 of the information which is in regard to the offence of making false declaration as prescribed under Section 27 of the Economic and Financial Crimes Commission (Establishment) Act, 2004, however, there is evidence that the Appellant was arrested in Shagamu before he was taken to Abuja and the whole investigation was conducted in Lagos, Abuja and Ogun States making part of the commission of the offence in Ogun State thereby conferring jurisdiction in Ogun State High Court to tried the Appellant. The Respondent relied on Section 12 Criminal Code Law of Ogun State, NJOVENS V. STATE (1973) 5 SC 17 and NYAME V. FRN (2010) 7 NWLR (PT. 1193) 344.Relying on Section 64 (c) of the Criminal Procedure Law of Ogun State and Section 70 and 71 of the Criminal Procedure Code the Respondent submits that offences in counts 1 -13 and 17 -32 are the crime allegedly committed by the Appellant while the ones in counts 14-16 were committed during the course of investigation which cannot be tried separate from counts 1 – 13 and 17 – 32, therefore the argument of the Appellant is absurd. Continuing, the Respondent submits that the Appellant argued that there is no offence known as fraudulent conversion of land under the Land Use Act, therefore, Counts 1-13 are not applicable to the Appellant, however, the trial Court in resolving this issue held that under Section 434, the Appellant can be arraigned for criminal breach of trust and infraction of the Land Use Act. The Respondent contended that the focus of the offence being alleged in Counts 1 – 13 is fraudulent conversion of trust properties to the use not authorized by the trust as provided in Section 47 of the Land Use Act, Section 434 of the Criminal Code Law of Ogun State and Section 36(12) of the 1999 Constitution.

It was the argument of the Respondent that Section 1 of the Land Use Actmakes it clear that the Governor is a trustee of all lands in Ogun State as held in CHIEF NNANNA IWUCHUKWU & ANOR V. THE ATTORNEY GENERAL OF ANAMBRA STATE & ORS (2015) LPELR 24487 (CA), therefore, the argument of the Appellant to the effect that there is a difference between the office of the State Governor and the person of the Governor is misconceived. Again, the Respondent submits that the Appellant’s argument that there is no offence of breach of trust by the person of the Governor as contained in Section 1 of the Land Use Act and Section 434 of Criminal Code of Ogun State however, the offence of fraudulent conversion of trust property by trustee was created under Section 434 of the Criminal Code Law of Ogun State while Section 1 of the Land Use Act made the Appellant a trustee of all lands in Ogun State and both laws criminalize revocation of existing interest in the land and using public funds to pay for such revocation and later reallocating the same land to one self and the case of AOKO V. FAGBEMI AND BODE GEORGE V. FRN relied on by the Appellant is inapplicable. The Respondent urge the Court to resolve this issue infavour of the Respondent.

ISSUE THREE
Arguing this issue, the Respondent relied on AJIDAGBA V. INSPECTOR GENERAL OF POLICE (1958) SCNLR 60, EKWENUGO V. FRN (2008) 15 NWLR (PT. 1111) 638, ALEX V. FRN (2018) 7 NWLR (PT. 1618) 228, OLANIYAN V. STATE (1987) 1 NWLR (PT. 48) 156 and FRN V. MARTINS (2012) 14 NWLR(PT. 1320) 287 to explain the concept of no case submission and the principle of prima facie case and submitted that the offence alleged against the Appellant in Counts 1, 2, 3, 5, 6 and 12 relates to fraudulent conversion by a trustee which is prescribed under Section 434 of the Criminal Code Law of Ogun State and the trial Judge found that the prosecution has led evidence showing prima facie that the Appellant committed the offence alleged in those counts. The Respondent relied on the evidence of PW4 to PW20 at pages 2315-2342 of the record and the case of CHIEF NNANNA IWUCHUKWU & ANOR V. THE ATTORNEY GENERAL OF ANAMBRA STATE & ORS (SUPRA). Continuing, the Respondent submits that the prosecution led evidence to show that the Appellant converted the property to a use not authorized by the law and based on the evidence, it shows that thepayments made to owners of the many lands that were revoked was from Government funds which is clearly fraudulent. On the same point, the Respondent argued that the Appellant is the main trustee of the Regeneration Church of God thereby changing the design of the land to suit the interest of the Appellant which is a purpose not authorized by the trust.

It was the contention of the Respondent that counts 14-16 border on the offence of knowingly making false declaration which is prescribed in Section 27(3) of the EFCC Act, the Appellant claimed loss of memory but trial Judge held that the defence of memory loss is similar to the offence of insanity and must be proved with stronger evidence as held in OBIODE V. STATE (1970) 1 ALL NLR 35 and SAIDI OSENI V. STATE (2017) LPELR-42770(CA). Agreeing with trial Court, the Respondent submitted that it is duty of the Appellant to adduce strong evidence to prove the alleged memory loss and the trial Court was right in comparing the defence of memory loss raised by the Appellant with insanity because memory loss and insanity are health conditions which must be proved by a defendant who relies on same.Continuing,the Respondent submits that the failure of the Appellant to declare some of his assets was deliberate and the issue of memory loss is false because the Appellant gave full details of his biography, the names of his children and their date of birth. The Respondent relied on OYEBANJI V. STATE (2015) 14 NWLR (PT. 1479) 270.

Again, the Respondent submits that under counts 25 and 26 the Appellant was charged with corruptly obtaining property contrary to Section 10 of the Corrupt Practices and Other Related Offences Act, 2000. The Respondent argued that the Appellant contended that the trial Court ought to uphold his no case submission with respect to the above counts as the Court below did in Counts 17-24, however, the offences alleged in counts 17-24 are different from the offences alleged in counts 17-24, therefore, the evidence required to prove the offence alleged in counts 25 and 26. It was the argument of the Respondent that PW20 testified that the payment reflected in Exhibit 1067 and the account of Blue Chapel Limited were gratifications paid to the Appellant even when the Appellant argued that the company was inactive during his tenure but thepayments were made to the said account during his tenure, therefore, the trial Judge was right to rely on the provision of Section 53 of the Corrupt Practices and other Related Offences Act, and the case of DAUDU V. FRN (2018) 10 NWLR (PT. 1626) 169.

Furthermore, the Respondent submits that the Appellant argued that the various sums alleged in counts 27-32 represent reimbursement however, PW27 testified that the Appellant’s companies did not borrow the State Government funds neither were there any grounds for the reimbursement because there were evidence showing the various lodgments into the accounts of Masterline, Blue Chapel and Western Publishing Limited and Krestal Laurel Limited. The Respondent cited WIKE V. FRN (2009) LPELR-8077 CA. The Respondent argued that the various sums stated in counts 27-32 are capable of being stolen and by collecting the monies and paying them into the accounts of the companies, in which he is the sole signatory, the Appellant permanently deprived the Ogun State Government of its funds, thus, the offence of stealing has been established against the Appellant. The Respondent urge the Court to resolve this issue infavour of the Respondent.

APPELLANTS’ REPLY
The Appellant submits that it is right to raise the issue of jurisdiction at stage of No Case submission because jurisdiction is an issue of law and appeal lies as of right against the decision on grounds of law and also the issue of jurisdiction affects the Appellant’s constitutional right to be presumed innocent in respect of the counts which the issue was raised. The Appellant argued that the Court of Appeal Case No.: CA/IB/258C/2019 relied on by the Respondent is inapplicable because it was the observation of the Court and not the ratio which cannot be binding on the Court. The Appellant posit that the Respondent did not respond to the Appellant’s submission in respect of the propriety of raising jurisdictional issue at the stage of no case submission which amounts to concession as held in FRN V. SARAKI (2017) LPELR-43392(CA) and FULANI M V. STATE (2018) LPELR-45195(SC).

It was the submission of the Appellant that the evidence of PW20 under cross-examination specifically stated that the Appellant was neither arrested nor interrogated in Ogun State and it is trite that the place ofarrest is totally irrelevant rather it is place where the Appellant falsefully declared his assets that is more important and that was done in Abuja. Continuing, the Appellant submits that the Respondent’s Counsel should note that submissions in the Respondent’s brief must take bearing from the evidence before the Court and Counsel address is not a substitute for evidence and cannot therefore replace evidence. The Appellant cited AKITSE V. STATE (2015) LPELR-24584.

According to the Appellant, the Respondent evidently has no answer to the Appellant’s submission that Section 27(1) of the EFCC, Act applies only in situations where the person is being investigated for offences under the EFCC, Act and is not applicable to every offence within the prosecutorial powers of EFCC, therefore, failure to respond to the above issues amounts to concession/admission by the Respondent of the issues. Continuing, the Appellant submits that the Respondent relied on Section 64(c) of Criminal Procedure Law of Ogun State to argue that the Section applies to inter-state jurisdiction, however, Section 64(c) of Criminal Procedure Law of Ogun State deals withdivision of the Court which is intra-state jurisdiction therefore, the Respondent cannot utilize the said provision to respond to issue of territorial jurisdiction raised in the Appellant’s brief and it is trite that parties cannot for any reason confer jurisdiction on a Court that lacks same as held in SOLOMON & ANOR V. FRN & ANOR (2013) LPELR-21971(CA).

The Appellant submits that the Respondent relied on the case of SAVANNAH BANK V. AJILO that a trust has been created by the Land Use Act and the Appellant is trustee of Land in the State, however, the ratio decidendi in the AJILO’s case is that all grantees of right of occupancy requires the consent of the State Governor before alienation without which is a nullity, therefore the status of the Governor as a trustee of land in the State was an orbiter. Continuing, the trust which the Appellant is accused of breaching is allegedly created by the Land Use Act and the Land Use Act did not criminalize allocation of land, hence, the submission of the Respondent that the Appellant contravened Section 434 of the Criminal Code Law of Ogun State is therefore of no moment.
In regards to issue three of the Respondent, the Appellant responded that where there is no case to answer, the Court is expected to consider not only whether there is evidence linking the Defendant to the crimes alleged but whether the prosecution’s evidence has been so discredited, battered and tattered such that no reasonable Court or tribunal will be expected to proceed beyond no case submission stage as held in UGWU V. STATE (2013) 4 NWLR (PT. 1343) 172 and OKORO V. THE STATE(1988) 5 NWLR (PT. 94) 255, therefore, where evidence of the prosecution witnesses damaged the case of the prosecution, the no case submission ought to be upheld and also where the essential ingredients of the offence were not supported by relevant evidence as to link the Appellant with commission of any offence, the no case submission ought to have been upheld.

The Appellant submitted that regarding counts 1, 2, 3, 5, 6, 12, 14-16, 25, 26, and 27-32 which deals with fraudulent conversion of land, false declaration and corruptly receiving money, the Respondent has not offered any answer to the Appellant’s submission which amounts to concession by the Respondent that it did not prove theessential ingredients of the offence charged and also there were no evidence before the trial Court to support the submission the Respondent.

Furthermore, the Appellant contrary to the rules of Court re-argued his submissions in respect of counts 1, 2, 3, 5, 6, 12, 14-16, 25, 26, and 27-32. However, it is trite that the purpose of a reply brief is to respond to new issues raised in the Respondent’s Brief of Argument and not to re-argue the Appellant’s brief or to extend the scope of the argument and submission in the Appellant’s brief of Argument. See the case of MATHEW V. THE STATE (2019) 8 NWLR (PT. 1675) 461 and ALIKOR V. OGWO (2019) 15 NWLR (PT. 1695) 331. Therefore, the Court shall discountenance part of the arguments in the reply brief which did not respond to new issues raised in the Respondent brief.

RESOLUTION
After a careful consideration of the Notice of Appeal, the Records of Appeal and the briefs of learned Counsel in the appeal, the Court notes the number of issues donated by the parties for resolution in this appeal. However, in view of the fact that the Appellant is the party aggrieved with the decision of theCourt below, it is only proper to seek to resolve all areas of complaint for a complete consideration of the 8 issues distilled for resolution.

ISSUE ONE
This issue questions the holding of the lower Court wherein the trial Judge said it was improper to raise a challenge to jurisdiction along with no case submission.

Jurisdiction is a threshold issue and fundamental issue, it is now settled that it can be raised at any stage of the proceedings, in any form and even orally by either party or even at the Appellate the Court, the apex Court in NWEKE V. FRN (2019) LPELR- 46946 (SC) held thusly:
“The law is trite that jurisdiction is a threshold issue. Where a Court has no jurisdiction to hear a matter and it proceeds to hear the matter, the decision arrived at, no matter how brilliantly conducted and delivered, is a nullity. Because of its fundamentality, issues concerning the jurisdiction of a Court, can be raised at any stage of the proceedings on appeal or even for the first time in the Supreme Court. See NURTW & Anor v RTEAN &Ors (2012) 10 NWLR (pt. 1307) 170, (2012) LPELR – 7840 (SC), Usman Dan Fodio University v Kraus Thompson Organisation Ltd (2001) 15 NWLR (pt.736)305, Onyemeh&Ors v Egbuchulam&Ors (1996) 5 NWLR (pt 448) 255.” Per OKORO, J.S.C.
Going by the above decision and several others in the same flow, jurisdiction can be raised at any stage of proceedings and it does not need a particular format, it is because of its importance that it is never too early nor too late to raise it. If a Court lacks jurisdiction, every step taken or the proceedings leading to the point where it becomes clear that it lacks jurisdiction becomes a nullity. See KURMA V. SAUWA (2018) LPELR-46317(SC) wherein the apex Court held thusly:
“Clearly what is called for the determination of this Court is a jurisdictional question as to whether the Court that adjudicated over this matter had the power to do so. It needs be brought to the fore that it is vital in the administration of justice, and fundamental for the competence of the Court to adjudicate over the matter and if the Court lacks the jurisdiction to hear the matter the proceedings are and will remain a nullity notwithstanding how well or brilliantly conducted. The reason is that jurisdiction is the life wire and of utmostimportance in the adjudicatory process and because of this pivotal position the issue of jurisdiction can be raised at any stage of the proceedings even if for the first time on appeal at the Apex Court. See Daniel v Amosun (2012) 11 WRN 47 at 53, Shelim& Anor v Gaban (2009) 5-6 SC (Pt. 1) 174 at 176.” Per PETER-ODILI, J.S.C.

So why would a Court opine that it is inappropriate at any stage of the proceedings to raise the issue of jurisdiction? Convenience of the Court is never a consideration in the determination of jurisdiction. A no case submission is part of proceedings in a criminal trial and it is settled that all offence must have been created in a valid and subsisting law and it becomes more imperative for a Court to be sure of its power to try the offence that is created by a written law as constitutionally provided for, see Section 36(12) of the 1999 Constitution. If jurisdiction had been determined by the Court before the stage of no case submission wherein it was raised, the Court would then be right to find it inappropriate to raise it again along the no case submission but the record of appeal does not reveal that jurisdiction wasdetermined before the no case submission.
The Court below therefore erred by designating appropriate times an objection on jurisdiction can be made in a criminal trial, unfortunately, the right time was not spelt out. Since the apex Court gave an open cheque in making such applications, no Court below the Supreme Court has the vires to limit or state otherwise. Jurisdiction is too important to be compartmentalized by designating times it can be raised. It is likened to red hot iron ball that the moment you touch it, it must be dropped or else you get your hands burnt. Once jurisdiction is challenged, the Court must drop everything it is doing to determine whether it has jurisdiction before proceedings or taking its hands off the matter.
The Respondent referred us to the decision of the Court in CA/IB/285C/2019 between OTUNBA JUSTUS OLUGBENGA DANIEL V FEDERAL REPUBLIC OF NIGERIA a decision of the Court delivered on the 27/3/2020 and contended that it agreed with the trial Judge that it was inappropriate for the Appellant to raise the issue of jurisdiction at the time he did. I have read the decision referred to and it was clearly made by the Court thatjurisdiction of course can be raised at any time and even orally, and for the first time on appeal, what was frowned at was the convenience of the determination of a challenge to jurisdiction vis – a – vis the no case submission and that it creates a clumsy situation because it could obfuscate issues but certainly not unlawful to do that even though they are mutually exclusive. It is therefore the convenience of the Court and not the propriety of raising the issue of jurisdiction which is allowed in law.

I resolve issue one in favour of the Appellant.

ISSUE TWO
The contention here is whether the Respondent can initiate prosecution in its name in respect of State offences, the contention of the Appellant is that the Respondent should have done so in the name of the State, the offences being a State offences. The trial Judge found that the Respondent can initiate prosecution in it’s name even when prosecuting State offences, in this case, counts 1-13, and 27-32 are all State offences and in this case the Respondent did so under a fiat duly given by the Attorney General of the State.

Indubitably, the question of who institutes criminalproceedings is fundamental because it is a matter of competence and consequently, a jurisdictional issue. A party who is not empowered by law cannot initiate criminal proceedings. A similar challenge was settled in the case of AMAH V. FRN (2019) LPELR-46347 (SC) as follows:
“The purport of the submissions of learned counsel for the appellant under this issue is that the production and tendering of a fiat issued by the Attorney-General of Lagos State to the Economic and Financial Crimes Commission to prosecute the appellant for offences under the Criminal Code Law of Lagos State is a condition precedent to the exercise of jurisdiction by the trial Court to try the appellant for those offences. This submission is derived from settled principles that govern jurisdiction, as stated in: Madukolu Vs Nkemdilim (1962) 2 SCNLR 341, to wit: A Court is competent when:
a. it is properly constituted as regards numbers and qualifications 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 jurisdiction, and there is no feature in the case which prevents the Court from exercisingits jurisdiction; and
c. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
It was also held per Bairamian, JSC that “any defect in competence is fatal, for the proceedings are a nullity, however well conducted and decided; the defect is extrinsic to the adjudication.” See also A.G. Lagos State Vs Dosunmu (1989) 6 SC (Pt. II) 1.
If indeed there has been an omission to fulfill a condition precedent to the exercise of the Court’s jurisdiction, it would not matter at what stage of the proceedings the objection is raised, as the proceedings would be a nullity. Jurisdiction is a threshold issue. This is why it has been held severally by this Court that an objection to the Court’s jurisdiction can be raised at any stage of the proceedings and even for the first time on appeal to the Supreme Court. See Petrojessica Ent. Ltd. Vs Leventis Technical Co. Ltd (1992) 5 NWLR (Pt. 244) 675, Elabanjo Vs Dawodu (2006) 15 NWLR (Pt. 1001) 76, Nwankwo &Ors. Vs Yar’adua (2010) 12 NWLR (Pt. 1209) 518.
However, where the defect complained of is procedural, thecomplaint must be made timeously otherwise the party complaining would be deemed to have acquiesced in the irregularity and waived his right to complain. See Madukolu Vs Nkemdilim (supra), Duke Vs Akpabuyo L.G. (2005) 19 NWLR (Pt. 959) 130, Saude Vs Abdullahi (1989) 4 NWLR (Pt. 116) 387 and Okoye Vs The State (1972) ANLR 938.
The first issue to consider is the extent of the power of the Attorney General of the Federation or of a State to undertake criminal prosecution. Section 174 of the Constitution of the Federal Republic of Nigeria, 1999 provides as follows:
“174. (1) The Attorney-General of the Federation shall have power –
(a) to institute and undertake criminal proceedings against any person before any Court of law in Nigeria, other than a Court-martial, in respect of any offence created by or under any Act of the National Assembly;
(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
(c) to discontinue at any stage before judgment is delivered any such criminal proceeding instituted or undertaken by him or any other authority or person.
(2) The powers conferred upon the Attorney-General of the Federation under Subsection (1) of this section may be exercised by him in person or through officers of his department.
(3) In exercising his powers under this section, the Attorney-General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent the abuse of legal process.”
(Emphasis mine)
Section 211 of the Constitution makes similar provisions for the office of the Attorney-General of a State in relation to offences created by or under any law of the House of Assembly. Section 174 (1) (b) & (c), which refers to proceedings initiated by “any other authority or persons”, is a clear indication that the power of the Attorney-General, Federal or State, to institute criminal proceedings is not exclusive to his office. See FRN Vs Adewunmi (2007) 4 SC (Pt. III) 30 at 42 – 43 & 53 – 54, Saraki Vs FRN (2016) 1 – 2 SC (Pt. V) 59 @ 105 lines 9 27; 167 lines 22-27.
In Amadi Vs FRN (2008) 12 SC (Pt. III) 55, this Court had cause to resolve an issue almost identical to the issue in contention in this appeal. In that case, an amendedinformation was filed against the appellant before the High Court of Lagos State in the name of the Federal Republic of Nigeria (FRN) for offences committed under the Advance Fee Fraud and Other Related Offences Act Cap. A6 Vol.1, LFN 2004 and under the Criminal Code Law of Lagos State Cap. C17 Laws of Lagos State, 2003. The appellant’s contention was that it is only the Attorney General of the State or an officer in his department to whom he had delegated his powers who could undertake criminal proceedings before any Court in Nigeria, other than a Court Martial, for offences created by or under any laws of the State House of Assembly.
The Attorney General of Lagos State had issued a fiat (Exhibit A) to the Chairman of the EFCC and the Attorney General of the Federation delegating his prosecutorial powers in relation to offences under the Criminal Code Law and Criminal Procedure Law of Lagos State to them. It was argued that the Federal Republic of Nigeria had no authority to prosecute him notwithstanding the fiat, as the delegation of power was addressed specifically to the Chairman of the EFCC and the Attorney General of the Federation. The contentionwas that the learned State counsel who signed the information was neither the Chairman of the EFCC nor the Attorney General and it could therefore not be presumed that the delegation of authority applied to him.
In resolving the issue, this Court, per Mukhtar, JSC (as he then was), reproduced an excerpt of the fiat issued by the Attorney General of Lagos State at page 66 of the report thus:
“I therefore have his further instructions to inform you that in the spirit of our collective resolve to reverse the country’s negative image, he does formaly (sic) delegate his prosecutorial powers in relation to offences under the Criminal Code Law and Criminal Procedure Law of Lagos State to both the Attorney General of the Federation and the Economic and Financial Crimes Commission effective from the date of this letter.”
After considering the arguments of learned counsel on the validity or otherwise of the delegation of power vide Exhibit A, His Lordship endorsed the submission of learned counsel for the respondent to the effect that the use of the word “may” in Section 211 of the Constitution does not restrict the delegation of the Attorney General’spowers to only officers in his department and furthermore, on the authority of NafiuRabiu Vs The State (1980) 8 – 11 SC (Reprint) 85; (1980) NSCC 291, State Vs Ilori (1983) NSCC 69 and Ibrahim & Anor Vs The State (1986) 1 NSCC 231, the powers of an Attorney General under Sections 174 and 211 of the Constitution cannot be questioned by any Court. The fiat issued by the Attorney General of Lagos State was held to be valid.
At page 68 lines 9 – 32 (supra), the reasoning of the Court of Appeal was quoted with approval as follows:
“The position in criminal trial is different. In view of the high premium attached to speedy disposal of criminal cases, the Attorneys General of the States delegate their powers to the various States Commissioners of Police who institute and prosecute criminal matters in the name of the Commissioners of Police. Such powers are also delegated to the Federal Board of Internal Revenue, Nigeria Customs Service and lately EFCC by the Attorney General of the Federation. This arrangement is made possible subject to the provision of Sections 174 (1) (b), (c) and 211 (1) (b), (c) of the Constitution of the Federal Republic of Nigeria, 1999., which provide that the Attorney General of the Federation or State, as the case may be, shall have power to take over and continue any such criminal proceedings instituted by any other authority or person, and to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by any other authority or person.” (Underlining by His Lordship)
By virtue of Section 168 (1) of the Evidence Act, 2011, there is a presumption of regularity in favour of any official act carried out by the Attorney General. It follows therefore, that in the absence of proof that the said fiat has been expressly revoked by the Attorney General of Lagos State, the authority delegated to the EFCC to prosecute offences under the Criminal Code Law of Lagos State remains sacrosanct and cannot be questioned by any Court.
The authority of the EFCC to prosecute offenders in the name of the Federal Republic of Nigeria for offences constituting financial crimes committed under the Criminal Code or the Penal Code was further acknowledged by this Court in its recent decision in: Shema Vs FRN (2018) 1 SC (Pt.1) 1 @ 38 – 39, where itwas held, inter alia, per Bage, JSC:
“… I wish to reiterate the well settled position of this Court in Nyame Vs FRN (2010) 3 SC (Pt.1) 78.
In this case, this Court indicated and very clearly, that there is nothing here that prevents the EFCC from prosecuting offenders in the name of the “Federal Republic of Nigeria” being the agency responsible for co-ordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with economic and financial crimes in the Federal Republic of Nigeria by virtue of Section 1 (2) (c) of the EFCC Act.
The effect of our clear and [un]ambiguous stance in Nyame Vs FRN (supra) and which we have no reason to depart from, is that the commission (the EFCC) is the coordinating agency for the enforcement of the provisions of any other law or regulation on economic and financial crimes, including the criminal code and the penal code. The Commission has power under Section 13 (2) of the Act to prosecute offences so long as they are financial crimes.” (Emphasis mine)
The decisions of this Court in Amadi Vs FRN (supra) and Shema Vs FRN (supra) constitute a completeanswer to the first issue for determination in this appeal. The presumption, which has not been rebutted, is that the EFCC has the requisite authority, donated by the Attorney General of Lagos State, to prosecute the appellant for offences allegedly committed under the Criminal Code Law of Lagos State. The authority cannot be questioned. As rightly held by the lower Court, this Court has taken judicial notice of the fact of the delegation, which is binding on all.
On the appropriate stage to raise an objection of this nature, this Court in Amadi’s case (supra) relying on Section 167 of the Criminal Code Law, held that it amounts to an objection to a defect on the face of the charge, which ought to have been raised immediately after the charge was read. In other words, it is a procedural issue that does not affect the jurisdiction of the Court to hear the case. I am guided by that decision in this case.” Per KEKERE-EKUN, J.S.C.
The matter has been settled by the copious quotation of almost 10 pages above and which expatiated on the reasoning for the holding and the current position of the law.

I resolve this issue against the Appellant.

ISSUE THREE
The Appellant under this issue challenged the territorial jurisdiction of the trial Court to assume jurisdiction over alleged offence under Section 27(1) of the EFCC Act. It concerns declaration of assets (Exhibit 184). The Appellant was invited to Abuja and was made to declare his assets which the Respondent contends he knowingly made a false declaration. The Section criminalizes failure to make full disclosure of assets when the EFCC is investigating an offence under the Act. In this case, the Appellant was made to make the declaration in Abuja. The Respondent was given a fiat by the Attorney General of Ogun State to prosecute cases under the Criminal Code of Ogun State. Therefore, the prosecution of the Appellant is taking place in Abeokuta, Ogun State because the offences alleged are contrary to Ogun State Law. Now, the Respondent included an offence allegedly committed in Abuja under a Federal Act to be tried by Ogun State High Court, thus the challenge that none of the elements of the offence took place in Ogun State and therefore the trial Court had no territorial jurisdiction to try Counts 14 – 16 of the information sheet.

Firstly, the offences alleged in counts 14-16 are federal offences and Section 27(1) also refers to offences under the Act, none of the other offences was brought under the EFCC Act, they are all contrary to Ogun State Law and the Respondent was acting under a fiat because it has no jurisdiction generally to prosecute for any State offence and truly the alleged act took place in Abuja.
Now, the case of NJOVENS v. STATE (SUPRA) relied upon by the trial Judge relates to elements (ingredients) of the same offence taking place across State boundaries, but largely the same offence. The contention that the Appellant was arrested in Sagamu is not true as PW20 said they did not arrest the Appellant in Sagamu but merely invited him to their office in Abuja, hear him (page 2110 of the records of appeal):
“We went to the house of the defendant in Sagamu where we invited him to our office. I did not say we arrested him.”

Invitation is different from arrest and the Appellant honoured the invitation to Abuja. There was no arrest enforced by the Respondent.

It is clear therefore that all elements of the alleged offence named in counts 14-16 tookplace in Abuja.

The next relevant point to consider is whether the Appellant was investigated for any offence under the EFCC Act, the obvious answer is no, the Respondent was investigating offences under a different law with no corresponding provision like Section 27(1) of the EFCC Act. The Section in reference referred to offences under the EFCC Act and none of the counts was laid under any Section of the EFCC Act but Criminal Code of Ogun State, therefore the Respondent cannot arraign the Appellant of offences named in Section 27(1). The Respondent did not need a fiat to prosecute the Appellant under any Section of the EFCC Act.

My Lord OREDOLA, J.C.A (now retired) in IBORI V. FRN (2008) LPELR-8370 (CA) gave an elaborate analysis of territorial jurisdiction which is apt, instructive and relevant to the issue under determination.
It is trite jurisprudentially, that criminal jurisdiction is basically territorial. Thus, jurisdiction in criminal matters in Nigeria is principally and mainly territorial. It depends to a large extent on where the alleged offence, at least the initial element, part or essential ingredient of the offence took place. It thusstands to reason that if civil matters recognize territory jurisdictional limitations, a fortiori criminal matter, which by their very nature are inhibitive, restrictive and impinge on the liberty and freedom of an accused person. The law is also settled that a Court’s jurisdiction is prescribed, embedded or engraved in the statute which creates it. It is usually circumscribed and not open ended and at large.
Ordinarily, and without express provisions of the creating statute, a Court’s jurisdiction should not be extended beyond its territorial limit. What is more, jurisdiction is not subject to emotion, sentiment, whims and caprices of anyone. It is firmly rooted and must be in accordance and consonance with laid down provisions in the creating statute.
The apex Court also reiterated the guiding principles and stated how to resolve the issue of venue of the trial of an accused person was restated by the apex Court in the case of DARIYE V. FRN (2015) LPELR-24398(SC) thusly:
“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 tore-iterate the views of this Court inNyame 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.” Per NWEZE , J.S.C.
In the light of the above, none of the elements or ingredients of the offence named in Section 27(1) of the EFCC Act took place in Ogun State, therefore, the trial Court lacks the territorial jurisdiction to determine the alleged offences and they are hereby struck out for want of jurisdiction.

I resolve this issue in favour of the Appellant.

ISSUE FOUR
The Appellant under this issue challenges counts 1, 2, 3, 5, 6 and 12 of the charge for which the lower Court ruled that the Appellant should put in his defence.The offences named in the counts are founded on the Land Use Act. The argument of the Appellant is that neither the Land Use Act nor any other Act criminalizes any of the named infractions in the land Use Act. The Respondent took root for the counts from the fact that a Governor of each State is a trustee of the land in the State for the people of the State.

The Constitution of the Federal Republic of Nigeria is the foundation of all laws and how activities in the society can be regulated. Section 36(12) of the Constitution provides thus:
“Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.”
The simple argument of the Appellant is that there is no law either of the National Assembly or the State that proscribed dealing contrary with Land in the State and the Land Use Act did not define any offence nor did it define anypenalty as a criminal offence.
The Constitutional provision considered by the Courts in some cases, it was reinforced in strong terms that no person should be prosecuted or convicted for an offence not expressly defined in a written law, that it should not be open to conjecture but express and clear. See BODE GEORGE V. FRN (SUPRA) which held as follows:
“Any conduct that must be sanctioned must be expressly stated in a written law to wit: an Act by the National Assembly. That is what Section 36(12) of the 1999 Constitution provides. Such conduct should not be left to conjecture. As well, it cannot be inferred by the Court. It occurs to me that Section 203 of the Criminal Code is not in tune with the dictate of Section 36(12) of the 1999 Constitution. That being the position, the charges filed under Section 203 of the said Code ostensibly for splitting contract in disobedience of lawful order by constituted authority cannot stand. I maintained the same stance when faced with a similar scenario in Asake v. Nigerian Army Council (2007) All FWLR (Pt. 396) 731 at 746 – 747. With due sense of purpose and humility, I stand by it. I say it with utmostconfidence that the same position applies to the provision of Section 104 of the said Criminal Code Acts said to have constituted arbitrary acts resulting in abuse of office are splitting of contracts which were not offences known to law at the material time. The alleged conduct of ‘splitting of contract’ was not only outside any written law but in fact, not an offence at the material time. The same goes for conspiracy to split contract. It occurs to me that the entire proceedings ran foul of the provisions of Section 36(8) of the 1999 Constitution which provides that:- “No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.” Per FABIYI, J.S.C
See also the following: SELE V. STATE (1993) LPELR-3030 (SC), YABUGBE V. C.O.P (1992) LPELR-3505(SC) and ONWUGHALU V. FRN (2019) LPELR-47313(CA).
The argument of the Respondent is that the offences named in those counts are fraudulent conversion of trust properties to the usenot authorized by the trust, and referred to Section 434 of the Criminal Code law of Ogun State under which the said Counts are grounded. The Section 434 provides thus:
“Any person who being a trustee of any property destroys the property with intent to defraud, or with intent to defraud coverts the property to any use not authorized by the trust, is guilty of a felony and is liable to imprisonment for seven years.
For the purposes of this section the term “trustee” includes the following persons – (b) trustees appointed by or under the authority of an Act, Law or Statute for any such purpose.”

The Respondent went on to name the ingredients of the offence namely:
i. That the accused is a trustee of any property.
ii. That the accused converts the property to the use not authorized by the trust.
iii. That the conversion is with the intent to defraud.

Now the alleged trust is supposed to have been created by the Land Use Act which entrusted the entire land in the State to the Governor of the State and specified powers he could exercise. Before going into other details, there is no trust deed createdanywhere where the Appellant was named as a trustee but the Land Use Act, the law created the trust. And therein are the duties and obligations named and the property to be managed also stated in the Land Use Act so any breach must also be founded in the Land Use Act. It therefore means that the Trustee should act only as allowed by the Land Use Act and not any other legislation. The Respondent submits that Section 1 of the Land Use Act created the trust, it provides:
1. Subject to the provisions of this Act, all land comprised in the territory of each State in the Federation are hereby vested in the Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act. The Court defined a trust in the case IWOK V. UNIVERSITY OF UYO & ANOR (2010) LPELR- 4345 thus:

“A Trust … is the relationship which arises wherever a person called the trustee is compelled in equity to hold property, whether real or personal, and whether by legal or equitable title, for the benefit of some persons (of whom he may be one and who are termed cestuis que trust)or for some object permitted by law, in such a way that the real benefit of the property accrues, not to the Trustee but to the beneficiaries or other objects of the Trust” See Snell’s Principles of Equity 27th Edition P.87. The concern of trust law is that money or property is owned and managed on behalf of another. The word trust traces its origin to, and means substantially the same thing as “the use” in the English property law. The word use is derived from the Latin phrase “ad opus” meaning “on his behalf See Mait Land, Equity, “P. 24. Megarry’s Manual of the Law of Real Property” by P. v. Banker 4th Edition page 65.” Per NGWUTA, J.C.A.
I have no problem with the creation of the trust and the Governor standing in the place of a trustee, however, the terms of the trust and how it was breached to the extent that a crime can be imputed or alleged to have been committed is the issue in this case and it is of importance. The case of CHIEF NNANNA IWUCHUKWU & ANOR V. THE ATTORNEY GENERAL OF ANAMBRA STATE & ORS (2015) LPELR – 24487 (CA) in an elaborate manner analyzed how a Governor of a State is a trustee in respect of land within the State hegoverns, it held thusly:
“S.1 of the Land Use Act provides that – “subject to the provisions of this Act, all land comprised in the territory of each State in the Federation are hereby vested in the Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act.” It is glaring from the wordings of this Section that it vests all lands comprised in the territory of a State in the Governor. It did not stop there. It proceeded to define the nature of that title to or holding. It then in descriptive terminology, state that such land shall be held by him in trust and administered for the use and common benefit of all Nigerians. It is clear from the wordings of S.1 of the Land Use Act that the Act did not intend to vest the Governor of a State with the allodial or radical or absolute title to the land in the State. It intended that the Legal title to the land be vested in the Governor as a public trustee to control and manage the land for the common benefit of all Nigerians. The Legislative intendment that the land in a State is held by the Governor of aState, not as absolute owner, but as a trustee of the lands for the benefit of the people, is obvious, not only from the use of the word “trust” or the words “held in trust” in that Section but also from the words “and administered for the use and common benefit of all Nigerians.” So that assuming the words “held in trust” are excluded from that provision, leaving only the words “all land comprised in the territory of each State of the Federation are hereby vested in the Governor of that State and such land shall be administered for the use and common benefit of all Nigerians…”, the provision would still have vested the land in the governor as a public trustee for the use and common benefit of the people. Trust results and exists by virtue of the holding of a property for the benefit of certain persons entitled to benefit from it. That is the defining character of trust. See Snell’s Principles of Equity (28th Ed) page 90 and the decision of this Court in IWOK & ORS V. UNIVERSITY OF UYO & ANOR (2010) LPELR 4345. So when the Section states that the land is to be held in trust, it means that the Governor is to hold and manage the land for the commonbenefit of Nigerians. The descriptive terminology, “and administered for the use and common benefit of all Nigerians” following the words “held in trust” emphasizes the nature of the holding as a trust. “It is obvious that the purpose of the Act is to ensure equal opportunity of all Nigerians to the use and enjoyment of their Land. The legislative intendment of the Land Use Act is certainly not to create a feudal manorial system that was prevalent during the middle Ages and died with it. The vesting by the Land Use Act of the power to revoke existing rights or interest in land and compulsorily acquire same for overriding public interest in the Governor of a State is not inconsistent with the nature of his title as a trustee of the land. The trust expressly created by S.1 of the Land Use Act is a special trust which is regulated by the Land Use Act and any regulations made thereunder. The holder of the right or interest in the land compulsorily acquired is entitled to payment of appropriate compensation therefore and the acquisition must adhere strictly to the Constitution, the Land Use Act and other relevant legislation. It is not an absolute power that theGovernor can exercise according to his whims and caprice like the Lord of Manor in a feudal manorial state. It is a real trust and not an illusory one. While it may exhibit features that distinguish it from the commonly known trusts like private and charitable trusts, it remains a trust so far as the holder of the legal and equitable title to the trust property (the land comprised in the territory of the State) is not the beneficial or absolute owner of the property and he has a duty to administer it for the use and common benefit of all Nigerians. The Supreme Court in SAVANNAH BANK OF NIG LTD & ANOR v. AJILO & ANOR (1989) 1 SC (PT11) 90 interpreted and applied S.1 of the Land Use Act and held concerning the nature of the title vested in the Governor of a State thus – “there has been no Statute like this before. It took away the land from every “Landed gentry” and vested it for administration in the Military Governor of the State in which the land is situated for management and control for the benefit of all Nigerians. The Military governor has not got the land vested in him as beneficial owner, far from it. The vesting in this instance is foradministrative and management purpose, in trust, for all Nigerians …. The whole land in each State is thus vested in trust in the Military Governor to be administered for the benefit of all Nigerians irrespective of where they may be. The management and control is in the governor for land in urban areas and other land in rural areas to be so designated in accordance with the Act shall be under the management with which the lands are situated. It is in this wise that the Act should be construed in its peculiar circumstances and by giving each word, each phrase, each expression its natural, ordinary and grammatical meaning.” All the land comprised in the territory of a State is the trust property. The occupancy and use of any land in the State is a benefit from the trust property.” Per AGIM,J.C.A
And as Section 1 says, the Governor is to administer the land for the benefit of all Nigerians, the allegation named Nigerians and artificial persons as beneficiaries of land allocation in Ogun. The Respondent alleged that the Appellant allocated land to himself, friends and family members. He also revoked some allocation or compulsorily acquired some pieces ofland in the State.

The powers of the Governor under the Land Use Act are stated in Section 5 and it states thus:
5. (1) It shall be lawful for the Governor in respect of land, whether or not in an urban area –
(a) grant statutory rights of occupancy to any person for all purposes;
(b) grant easements appurtenant to statutory rights of occupancy;
(c) demand rental for any such land granted to any person;
(d) revise the said rental – (i) at such intervals as may be specified in the certificate of occupancy, or (ii) where no intervals are specified in the certificate of occupancy at any time during the term of the statutory right of occupancy;
(e) impose a penal rent for a breach of any covenant in a certificate of occupancy requiring the holder to develop or effect improvements on the land, the subject of the certificate of occupancy, and to revise such penal rent as provided in Section 19 of this Act;
(f) impose a penal rent for a breach of any condition, express or implied, which precludes the holder of a statutory right of occupancy from alienating the right of occupancy or any part thereof by sale, mortgage, transfer ofpossession, sub-lease or bequest or otherwise howsoever without the prior consent of the Governor;
(g) waive, wholly or partially, except as otherwise prescribed, all or any of the covenants or conditions to which a statutory right of occupancy is subject where, owing to special circumstances, compliance therewith would be impossible or great hardship would be imposed upon the holder;
(h) extend except as otherwise prescribed, the time to the holder of a statutory right of occupancy for performing any of the conditions of the right of occupancy upon such terms and conditions as he may think fit.
(2) Upon the grant of a statutory right of occupancy under the provisions of Subsection (1) of this Section, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy, shall be extinguished.

One of the powers of the Governor is to allocate land to any person and there is nothing therein that says he cannot allocate land to family members and artificial persons (companies or churches), other persons who are citizens of Nigeria and the same applies to his friends and by extension himself. Justlike any trust, deviation from the powers bestowed would create a breach but it may not necessarily be an offence. In this case there is nothing that was done outside the powers of the Governor. The Land Use Act did not criminalize any act of the Governor under the powers bestowed on him or generally in the said Act.
Furthermore, the Land Use Act allows the Governor to allocate land for all purposes, how then can the Respondent define unlawful purpose? What would be the authority for such distinction when “All purposes” should mean “All purposes,” going by the literal method of interpretation of statutes. See ABEGUNDE V. ONDO STATE HOUSE OF ASSEMBLY & ORS (2015) LPELR-24588(SC) wherein the apex Court held:
“The general rule of interpretation of statutes has also been laid by this Court in several decisions and the rule is that where the words of a statute are plain, clear and unambiguous, the Court shall give effect to their literal meaning. It is only when the literal meaning may result in ambiguity or injustice that the Court may seek internal aid within the body of the statute itself or external aid from statutes inpari-materia in order to resolve the ambiguity or avoid doing injustice. See OGBUNYIYA v. OKUDO (1979) 6-9 SC 32 AND OGUNMADE v. FADAYIRO (1972) 8-9 SC 1.” Per MOHAMMED, J.S.C.

It looks like the Respondent is fishing for offences related to land administration in Ogun State Laws. Section 434 of the Criminal Code is a general penalty provision, it is incomplete and must be read together with another State Law or instrument which created the offending act but certainly not an Act of the National Assembly. The fundamental point made by the Appellant which the Respondent could not respond to was the question: whether the Respondent could in one count allege an offence from a combination of a State law and a federal legislation? The Land Use Act allegedly breached is a Federal legislation while the Criminal Code is a State Law. There is separation of legislative competence between the State and the Federal Government. The State legislature law cannot criminalize an act provided for in a Federal Legislation particularly where the said federal legislation did not provide or create an offence. Ogun State legislature lacks the vires to do so and therefore whenthe Criminal Code at Section 434 provided for a penalty for breach of trust, it must apply only to laws created by Ogun State and not any act contrary to a Federal Legislation.
I agree with the Appellant that the case of AKWULE (SUPRA) is inapplicable because in that situation, it was the Northern Nigeria Legislative House making the law on Banking and went on create an offence in the Penal Code, they had the power to do so because by then, banking was within their legislative competence. Both laws were within the legislative competence of the same house unlike here where we operate a Federal Republic based on a Constitution which delineated powers for the State as distinct from those of the Federal Government.
When two Legislations are relied on to create an offence, they must be within the same legislative competence and a hybrid of legislations must be identified specifically from the trust instrument, to discern what makes any particular act a breach or an offence, one must fall back on the trust deed or the law and the law must have been breached in definite terms in the prohibition section thus creating an offence before the Court candetermine whether a breach was committed or not.
On this basis alone, all the counts that have a bearing to an alleged offence contrary to the Land Use Act and Criminal Code read together must fail due to lack of competence.

There is a distinction between the office of the Governor and the person of the Governor recognized by the Constitution and affirmed by a number of authorities, an analogy can be drawn with the office of the Attorney General. Both offices are creations of the Constitution. The Court on the difference between the office and the person held thus:
“The office of the Attorney General of a State is provided for in Section 195(1) of the Constitution of Nigeria 1999 (as amended). Its provision makes it clear that it is a corporation sole with a separate and distinct personality from the natural person who for the time being holds the office. See CARLEN (NIGERIA) LIMITED V. UNIVERSITY OF JOS (1994) 1 NWLR (323) 631, 656 and ATTORNEY-GENERAL OF THE FEDERATION V. ALL NIGERIA PEOPLES PARTY (2004) 114 LRCN 2671, 2687.” Per EKANEM, J.C.A in NJC v. YERIMA & ANOR (2014) LPELR-24208(CA)
The trusteeship created in the Land Use Actis attached to the office of the Governor and not to his person, if the law wanted the person of the governor at any point in time, it would have provided for it specifically. However, it is obvious that it would have been inappropriate to do so because the occupants of the office change every four years but the office remains.

The Respondent argued strenuously that the offence is created in the Land Use Act but failed to identify the offensive act. The fact is that fraudulent intention is an ingredient and it must be established, fraud is defined in the case of OTUKPO V. JOHN & ANOR (2012) LPELR-25053(SC) wherein the apex Court held thusly:
“Fraud is defined as an intentional perversion of truth for the purposes of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. It is something dishonestly and morally wrong. Fraud has to be pleaded with particularity and established in evidence. A person alleging fraud is not only required to make the allegation in his pleadings but must set out particulars of fact establishing the alleged fraud, so that the defendant goes into Court preparedto meet then. See Olufunmise vs. Falana (1990) 3 NWLR, Pt.136, pg.1 UAC vs. Taylor (1936) 2 WACA pg. 170 Usenfowokan vs. Idowu (1969) NMLR, P9.77 Ntuks vs. N.P.A (2007) 13 NWLR, pt.1051, pg. 332 Where a person alleging fraud does not specifically plead it, a Court cannot of its volition raise it, as a Court is bound to consider only issues raised on the pleadings before it. Obijuru vs. Ozims (1985) 2 NWLR, pt. 6, pg. 187 Nwadike vs. Ibekwe (1987) 4 NWLR, Pt. 67, pg. 718 Abacha vs. Fawehinmi (2000) 6 NWLR, pt. 660, pg. 228 Section 138 of the Evidence Act.” Per ADEKEYE, J.S.C.

Even if there was an offence with regards to land administration, the fraudulent element had no evidence supporting it, the trial Judge did not identify the evidence which established the fraudulent element.

Allocation of land through the normal process cannot be fraudulent. Having failed to show that the Governor, his family members and friends are not Nigerians and not entitled to any allocation of land in Ogun State or be beneficiaries, no offence can be imputed. The powers of the Governor were not breached. And no criminal offence was created with regards to the powers of theGovernor to allocate land to any Nigerian.

When it comes to the applicability of Section 36(12) of the Constitution, the Land Use Act did not create an offence that the Respondent can arraign the Appellant for. The trust created did not provide that the Governor cannot allocate land, in fact allocation of land is one of the powers of the Governor.

The Respondent failed to proffer any evidence of a fraudulent intention or to satisfy the ingredients it named in its brief.

I also say that the Respondent failed to present evidence that can prove elements of the offence upon which the Appellant should be called upon to defend.

I disagree with the learned trial Judge that a prima facie case was made in respect of the counts listed in this issue.

The easiest way to determine whether a prima facie case was established is to identify the witnesses who testified to each element of the offence, that way it becomes clear where no evidence was presented in respect of an element of the offence and the trial Judge can easily determine which count the defendant should be called upon to put in his defence and the one not made out. General consideration blurs the determination of a prima facie case particularly when the counts are these numerous and some so closely related that finding a distinction becomes a daunting task for the trial Court. Also, tying of witnesses to the elements helps the Appellate Court to also at a glanceresolve the question whether a prima facie case was made out.

I resolve this issue in favour of the Appellant and strike out counts 1, 2, 3, 4, 5, 6 and 12 and hold that the no case submission against the counts succeeds.

ISSUE FIVE
This issue is closely related to issue four, it also touches on the alleged fraudulent conversion of land by the Appellant for purposes not authorized by the Land Use Act. As stated earlier, the Land Use Act by Section 2 and 5 says the Governor can allocate land for all purposes. What then is the purpose (outside all purposes) that the Respondent can deduce from all purposes in order to create an unlawful purpose. All the acts complained against are not offences but within the powers of the Governor. There may be some unethical practices but such actions are not offences and if there were unlawful revocations and compulsory acquisitions done with the approval of the Appellant, the same Land Use Act gave jurisdiction to the High Court to determine the lawfulness of such actions. Certainly not in the realm of a crime because the Land Use Act did not criminalize any action or power under it. I adopt my resolution underissue four. The Respondent’s arguments raise more of a moral question and not criminal issue. What is not an offence cannot be defended. The Land Use Act did not specify the purposes not authorized in land allocation, so how can the issue of trust create an offence from what the law did not create. As observed earlier, there cannot be a hybrid of a State legislation latching on a Federal Law to create an imaginary offence. I resolve issue five in favour of the Appellant.

ISSUE SIX
The main concern here is the finding of the Court below that the Respondent made a case for the Appellant to enter his defence concerning the Assets declaration form he filled when he was invited to Abuja in the course of investigation and while in the Appellant’s custody. The declaration Form is Exhibit 184 and the charge was laid pursuant to Section 27(3)(a) of the EFCC against false declaration. It says thus:
“27(1) where a person is arrested for committing an offence under this Act, such person shall make a full disclosure of all his assets and properties by completing the Declaration of Assets Form as specified in Form A of the Schedule to this Act.

(3) any person who –
(a) knowingly fails to make full disclosure of his assets and liabilities; or
(b) knowingly makes a declaration that is false; or
(c) fails, neglects or refuses to make or furnishes any information required, in the Declaration of Assets Form, commits an offence under the Act and is liable on conviction to imprisonment for a term not exceeding five years.”
Count 14-16 deals with the allegation that the Appellant knowingly made a false declaration contrary to Section 27(3) (b) of the EFCC Act. The Respondent must establish elements of knowingly making a declaration that is false. The argument of the Appellant is that there was no evidence of knowingly making a false declaration. I agree with the Appellant that Section 27(3) creates two separate offences under (a) and (b) of the subsection, therefore the two are not the same and are different from refusal to make a declaration of assets.
In establishing the offence under Section 27(3) (b) the prosecution is under a duty to present evidence of knowledge in the making of a false declaration, this brings in the need for evidence of the fraudulent intention or mensrea as required by law. Black’s Law Dictionary defined knowing as follows:
“having or showing awareness or understanding; well informed, deliberate, conscious, a knowing attempt to commit fraud-knowingly.”
To show that it is done with the consciousness or awareness that it was false, it will require evidence from the Respondent that the Appellant had reason to believe the declaration was false and he did so with a fraudulent intention. The only witness who attempted to do so failed, so it was not established by evidence, it was only PW20 who told the Court below the be lathieved that the Appellant was not being truthful. His belief must be backed by evidence. Meanwhile, he admitted that the Appellant mentioned a drug he was placed on and the name of the hospital which prescribed it and that the medication gives him memory loss. This claim was not investigated even when all particulars necessary were provided at the earliest opportunity. I agree with the Appellant that having raised it before the arraignment, it was now within the knowledge of the Respondent and it should have been investigated. Failure to investigate must inure to the advantage of the Appellant because it cannot be investigated after the close of prosecution’s case. Placing the burden on the Appellant has exposed the case of the prosecution and left it unsubstantiated since the Appellant is on a medication that makes him lose memory. The Respondent’s failure to dislodge the excuse created by the use of the medication has left the case of the Respondent discredited because they no longer have the opportunity of disproving the claim. I agree that it can be likened to a case where the accused raised an alibi and it was not investigated, it will obviously inure to the benefit of the accused except there is evidence fixing him to the crime. Here there was no evidence of fraudulent intention as required by law.
I do not agree that the situation is likened to the defence of insanity where the burden is placed on the accused to prove same. Insanity is a defence while alibi is preemptive and laid before the case of the prosecution is initiated. While the defence of insanity is meant to be established by the Defendant during defence. However, in this case the element of having knowledge that the declaration was false is necessary. There is no evidence of the element of prior knowledge and fraudulent intention before the Court. So as to justify calling on the Appellant to enter his defence.

Next is the issue of the Appellant’s interest in some companies, the Respondent urged the Court to lift the veil to know if truly the Appellant had interest in those companies. Where the evidence does not show direct link particularly from a search conducted in Corporate Affairs Commission by the Respondent and the evidence tendered during the case for the prosecution. The Respondent cannot at this stage ask that the veil be lifted to know the interest of the Appellant. Once the link is not evident, the interest becomes too remote and weak to come under the section and to create an offence. This is so because it was not shown that he is managing the companies so as to know the investments done in other companies. Where the Appellant has interest in a company with others and the company later invests in other companies, it will be remote to ascribe to the Appellant interest in the 2nd degree company since the investment was done by an artificial person and not theAppellant. Therefore, the fact that the Appellant is a shareholder in Kresta Laurel and Kresta invested in Golf Place Resorts and Conference Hotels Ltd cannot be ascribed to him except he is a sole shareholder in Kresta or the Managing director. There is a distinction between individuals and artificial personalities in law, see the case of FAWEHINMI V. NBA & ORS (NO. 2) (1989) LPELR-1259(SC).

I resolve issue six in favour of the Appellant, counts 14, 15 and 16 are hereby struck out as no prima facie case has been established.

In respect of these classes of offences, I had resolved earlier that the trial Court lacks the competence to determine them because the alleged act took place in Abuja and not in Ogun State and the Appellant was not investigated or arraigned in connection with any offence under the EFCC Act. So no offence can arise when EFCC is prosecuting State offences under a fiat.

ISSUE SEVEN
The Court below discharged the Appellant on counts 17-24 relating to corrupt enrichment of receiving some sums from Aron Nigeria Ltd for the benefit of two other companies contrary to Section 19 of the Corrupt Practices and Related offences. But sustained counts 25 and 26 which relied on the same evidence that got the Appellant off on counts 17-24. Counts 25 and 26 allege corruptly obtaining property contrary to Section 10 of the Corrupt Practices and Related Offences, the Respondent argued that they are different offences. Courts have often times admonished prosecuting agencies to focus on offences that the evidence can establish and not just craft charges that appear on the surface without evidential backing to prove same, it amounts to fishing for offences. The argument of the Respondent is mere semantics without any difference. Corruptly obtaining and corrupt enrichment has an imaginary distinction and not a substantial difference, there was nothing new in the evidence, the same sum of money involved, the same companies and the same evidence but different counts. It looks like the prosecution was not sure of which of the offences its evidence can prove so it is more of a gamble instead of a conscious decision to target a definite allegation.
The ingredients identified by the lower Court are:
i. That the accused is a public servant;
ii. That he obtained property for himself or any person;
iii. That the property he obtained was on account of anything done or any favour shown to the person who gave the property; and
iv. That the matter in which he obtained the property is connected with his functions or affairs of business of a government department or a public body in which the accused is serving.

The evidence of prosecution witnesses obviously was insufficient because the trial Judge observed that the sufficiency issue is a matter for trial. The definition of a prima facie adopted earlier includes the demand that if the evidence of the prosecution is believed as it stands, it could lead to a conviction, see the case of ALEX V. FRN (2018) LPELR-43709(SC) (SUPRA)
“evidence discloses a prima facie case when it is such that if un-contradicted and if believed, will be sufficient to prove the case against the defendant.”
The evidence here is certainly insufficient and there is no opportunity again for the Respondent to bring additional evidence in order to prove any allegation after the close of its case and the evidence that will make the Appellant put in defence is one that if believed, the Appellant on that alone can be convicted. It is taking the evidence on its face value and as argued by the Appellant, but the lower Court had found that the evidence of PW32 negates the allegation against the Appellant in counts 17-24 that the Appellant did not use his office or position of Governor to corruptly influence the award of contract in respect of the sum of N32 million and N29 million, so if there was no corrupt influence with regards to the award of the contract, how can he now be guilty of obtaining property unjustly and connected to the same contract when there was no influence and was not said that used the position to confer undue advantage. The moment the lower Court acquitted the Appellant on counts 17 and 19, these ones too failed because it is the same contract and parties. Prima facie case cannot be established for count 25 and 26 with the evidence of PW32 who totally demolished the case of the prosecution. The evidence of the PW32 before the Court was that there was no influence and the money paid to the two companies was for sub-contracts executed by the companies and it was strictly for services rendered, this destroyed the case of the Respondent because it has removed the offensive element in respect of the alleged offences. The companies are artificial persons functioning in the line of business for which they were paid.

The Respondent urged the Court to rely on DAUDU V. FRN (SUPRA) to find against the Appellant. However, in the case of DAUDU V FRN (SUPRA) there was no evidence explaining the purpose for the payment, but there is an explanation here which the lower Court accepted. Counts 25 and 26 are also struck out. The Appellant is discharged on those counts.

I resolve issue seven in favour of the Appellant.

ISSUE EIGHT
The pith of this issue is the finding that the Appellant should enter his defence on counts 27 -32 which allege that the stealing of government funds contrary to Section 390(4)(f) of the criminal Code, Laws of Ogun State. The allegation is that as Governor, the Appellant converted government money in the aggregate sums of N55million, N19.998Million, N48Million, N10million and N60Million to the use of a company Blue Chapel Limited, Kresta Laurel Ltd and Western Publishing Limited.

The Appellant referred the Court to the evidence of PW22,PW24, PW25, PW27 and PW29 while the Respondent relied on the evidence of PW23, PW25, PW30 to contend that there was evidence in respect of all the elements of the offence of stealing.

Essential ingredient was defined in the case of ONAGORUWA V. THE STATE (1993) 7 NWLR (Pt. 303) 49 as follows:
“An element without which an offence cannot be sustained in law. It is an inevitable, indispensable and important element of the offence.”

The settled rule is that there has to be evidence in respect of all the ingredients because if there is any without evidence then the entire count fails.

The elements of the offence of stealing have been settled and no longer requires the citing of an authority, they state as follows:
i. The ownership of the thing stolen
ii. That the thing stolen is capable of being stolen.
iii. That the thing was fraudulently taken or fraudulently converted by the person Accused.
iv. That the accused person has the intention of permanently depriving the true owner of the thing stolen.
See the case of CHYFRANK NIG V. FRN (2019) LPELR-46401(SC), AYENI V. STATE (2016) LPELR-40105(SC) and AJIBOYE V.FRN (2018) LPELR-44468(SC).

The Criminal Procedure Code of Ogun State also defined stealing in its Section 383(1) thusly:
“A person who fraudulently takes anything capable of being stolen or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing.”
The essence of what the relevant witnesses told the Court are as follows:
PW22 said they payments followed due process and base on approved budget.
PW23 – vouchers were raised, approvals obtained before payments were made. Some of the payments collected as part of security votes of the Governor, Exhibits 223-229Governor’s office expenses.
PW25 – funds for budgeted items were paid, NGO’s assisted, donations made by the Governor approvals through budget office, payment to security details attached to Government house also included and paid after approval.
PW27 – collected money meant for the Governor and was directed to pay into certain accounts.

I have reviewed the evidence of all witnesses relied upon by both sides and what comes out very clear is that various payments were made for different purposes, even the sums paid to the Appellant’s account officer passed through normal approval channels and disbursements. Going by the element, stealing required to have evidence in support, I find the fraudulent element missing. Nothing was done in secret without relevant approvals. For the Appellant’s entitlements, the prosecution did not show that he was collecting more than he should so as to presume fraud. The funds were not in the Appellant’s physical or constructive possession and he did not approve all payment, not a single payment was made contrary to law or without approval or not budgeted for. Fraudulent conversion is without evidence to support it in calling on the Appellant to enter his defence. Furthermore, the intent to permanently deprive the owner of the funds was not mentioned by all the witnesses relied upon and unless there is evidence in that regard, the no case submission should succeed, see the case of CHYFRANK NIG. V FRN (2019) LPELR- 4640 (SC) where NWEZE, JSC said:
“… I entirely agree with these findings that there is no evidence, even if believed, upon which the Court could have made a finding that the appellants stole N86,900,000 and N7,900,000.00, subject of counts 5 and 6, Oshinye v Commissioner of Police (supra), Chianugo v State (supra); Adejobi v. State (supra); R. v. Ninedays (supra); Onimisi Ukana (alias Jaguda) v COP, Benue State (supra); Smart v. The State (supra);Clark and Anor. v. The State (supra); Babalola and Ors v The State (supra); Alake and Anor v. The State(supra); Ekuma v COP (supra); The Queen v. Nwankwo (supra); R. v Williams (supra); Eze v State(supra);Onagoruwa v The State (supra).
Put differently, the Prosecution did not succeed in establishing an essential element in Section 383 (2) (a) (supra), that is, ‘an intent permanently to deprive the owner of the thing of it,’ Oyebanji v. State(2015) LPELR – 24751 (SC) 16 -17, Muhammed v. The State [2000] FWLR (pt.30) 2623, 2626, Adejobi v. The State [2011] 12 NWLR (pt 1261) 347, 377, Oshinye v. COP [1960] 5 SC 105 and Chianugo v. The State[2002] 2 NWLR (pt. 750) 225.”

The essence of a no case submission was given in the case of SUBERU V. STATE (2010) LPELR-3120 as follows:
“On the vital question raised in this appeal – I am obliged to give an insight into the essence of ano case submission and its effect in a criminal trial. At the close of a case for the prosecution, a submission of a no prima facie case to answer made on behalf of the accused person postulates one or two things or both of them namely: (a) that there is no legally admissible evidence linking an accused with the commission of the offence with which he had been charge which would necessitate his being called upon for his defence. (b) that the evidence adduced has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable Court or Tribunal can act on it as establishing the criminal guilt in the accused person concerned. The purport of a no case submission when made on behalf of an accused person is that the trial Court is not called upon at that stage to express any opinion on the evidence before it. The Court is only called upon to take note and to rule accordingly that there is before the Court no legally admissible evidence linking the accused person with the commission of the offence with which he is charged. See Aituma v. State (2007) 5 NWLR pt.1028 pg. 466, Igabele v. State (2004) 15 NWLR pt.896 pg.314, Akwa v. C.O.P.(2003) 4 NWLR Pt.811 pg. 461,Aminu v. State (2005) 2 NWLR Pt.909 pg. 108, Akinyemi v. State (1999) 6 NWLR pt. 607 pg. 449, Ibeziakov. Police (1963) SCNLR pg.99 and Rose Nwankwo v. Shitta-Bey (1999) 10 NWLR pt.612 pg.75.” Per ADEKEYE, J.S.C.”
All that the Court is required to do when a no case submission is made is to determine whether the evidence adduced by the prosecution is sufficient to warrant an explanation from the accused person, the Court Per TOBI, JCA (as he then was, went to be JSC and now of Blessed Memory) in the case of ONAGORUWA V. STATE (SUPRA) stated as follows:
“The Federal Supreme Court adopted the above definition in AJIDAGBA VS. INSPECTOR GENERAL OF POLICE (1958) SCNLR PAGE 60 and the Supreme Court also adopted it in ADEYEMI VS STATE (1991) 6 NWLR PART 195 PAGE 1 AT 35. The expression “ground for proceeding” in sign, in my view should be determined in the strict context of the charge and the prosecution. If there is no sufficient evidence linking the accused with the statutory element or ingredients of the offence and I mean statutory elements and ingredients, a Court of trial must as a matter of law, discharge him. It has no business searching or scouting for evidence that is nowhere and therefore cannot be found. That will not be consistent with our adversary system. It is inquisitorial in design and in execution.”
Where the Respondent did not present evidence in support of ALL the elements, the no case submission should succeed. Furthermore, where the evidence of the prosecution is contradictory on any ingredient of a count the no case submission should succeed. In this appeal, some of the counts did contradict the evidence in support, some the evidence could not cover all the ingredients and for some counts the Court erred because they are not offences known to law.

The Court in ABACHA V. STATE (2002) LPELR-15(SC) admonished in the following words:
“The Courts have inherent power to prevent abuse of their process by any of the parties whether Plaintiff or defendant, prosecution or defence, so that as long as democratic process exists nobody will have his rights curtailed. All power to settle issues between the parties is vested in Courts and Court must be vigilant that genuine issues and controversies are settled so that no accused person will be settled either directly or indirectly through Act or prosecution, if not we shall have persecution in place of prosecution. It is for this reason that an accused person despite the power to file indictment on an information, should not be indicted to face trial that from the onset it was clear he should not face.”
See also IKOMI V THE STATE (1986) 3 NWLR (Pt. 28) 340 at 356, EGBE V THE STATE (1980) 1 NCR 341,OKOLI V THE STATE (1992) 6 NWLR (Pt. 247) 381, EMUNA V THE STATE (1997) 1 NWLR (Pt.479) 115, 121, 122 and OTUNBA C.A. ALAO-AKALA V FEDERAL REPUBLIC OF NIGERIA – APPEAL NO. CA/IB/250C/2021 delivered on the 2nd December, 2021.

In the light of the resolution of all except one of the issues donated for determination, the appeal is meritorious and is allowed, the ruling of the trial Court in criminal case no: AB/EFCC/1/2012 – BETWEEN FEDERAL REPUBLIC OF NIGERIA V OTUNBA JUSTUS OLUGBENGA DANIEL delivered on the 17th May, 2019 wherein the Appellant was ordered to enter his defence in respect of counts 1, 2, 3, 5, 6, 12, 14, 15, 16, 25, 26, 27, 28, 29, 30, 31 and 32 of the information is hereby set aside. The Appellant is discharged on these counts of the information. The entire information has failed and there is no surviving count of the information sheet. Appellant is discharged.

FOLASADE AYODEJI OJO, J.C.A.: I had the opportunity of reading the draft of the judgment delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA. I endorse the reasoning and conclusions reached therein.

The Appellant is standing trial on a Further Amended Information containing 32 counts. The allegations in the 32 counts include fraudulent conversion of parcels of land by a Trustee; Failure to declare assets as provided under the Economic and Financial Crimes Act; Use of Office to confer unfair advantage; Corruptly obtaining property and stealing of sums of money belonging to the Ogun State Government. The trial Court ruling on a no case submission found that the Prosecution did not make out a prima facie case against the Appellant on counts 4, 7, 8, 9, 10, 11, 13, 17, 18, 19, 20, 21, 22, 23 and 24 of the information and discharged him on these counts but ordered him to enter his defence on the remaining Counts which are counts 1, 2, 3, 5, 6, 12, 14, 15, 16, 25, 26, 27, 28, 29, 30, 31 and 32.

Counts 14 to 16 of the Further Amended Information borders on offences relating to declaration of assets. The Appellant contend that the issue of filling asset declaration form occurred while he was at the Respondent’s facility in Abuja and argued that the trial Court lacked jurisdiction to hear and determine same. I wish to reiterate the well settled position of law that the authority of the Court is exercised within a clearly defined area which is referred to as the territorial jurisdiction of the Court. Territorial jurisdiction is statutory, and it is conferred on the Court by relevant provisions of the Constitution and the enabling statute establishing the Court. The territorial jurisdiction of the High Court of a State, the trial Court inclusive is limited to the territorial boundaries of the State. See BELGORE VS. FEDERAL REPUBLIC OF NIGERIA (2021) 3 NWLR (PT. 1764) 503 and USMAN VS. STATE (2014) 12 NWLR (PT. 1421) 207.

It is clear from evidence adduced by the Prosecution witnesses that the asset declaration form was given to the Appellant and he filled same while in the custody of the Economic and Financial Crimes Commission in Abuja. The offence alleged in counts 14-16 were thus committed outside the territorial jurisdiction of the trial Court. I agree with my learned brother that the said counts should be struck out for want of jurisdiction.

It is trite that a no case submission may properly be made and upheld:
(a) when there has been no evidence to prove an essential element in the alleged offence;
(b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination, or is manifestly unreliable, that no reasonable Tribunal could safely convict on it.

In counts 27 to 32, the Appellant was accused of the offence of stealing.

In a long line of decided cases including ODEY VS. STATE (2019) 2 NWLR (PT. 1655) 97: ADEJOBI VS. STATE (2011) 12 NWLR (PT. 1261) 347, CHIANUGO vs. STATE (2002) 2 NWLR (PT. 750) 225, OSHINYE VS. COMMISSIONER OF POLICE (1960) 5 SC 105, it has been established that the ingredients of the offence of stealing are: (a) proof of the ownership of the thing stolen; (b) proof that the thing stolen is capable of being stolen; (c) proof of the fraudulent taking or conversion; (d) proof that the accused person has the intention of permanently depriving the true owner of the thing stolen.

In an attempt to prove the offence of stealing, the Prosecution called witnesses who testified under the sanctity of oath. I find it expedient to reproduce part of the testimonies of some of them.

One Ayokunle Sokunbi who testified as PW24 worked with several of the Appellant’s appointees including the Secretary to the State Government and the Chief of Staff to the Governor. At page 2136 volume iv of the printed record, he testified as follows:
“The document given to me are Exhibits 223-290. Exhibit 223 is for the sum of N8.6 million. It was for the expenses incurred by the Governor in the course of his duties. I gave the money to my boss, Dr. Majekodunmi. The purpose for which the money was collected is stated on the document. The majority of the said documents (i.e. exhibits) are reimbursement for the expenses incurred by the Governor during the visit of Mr. President to the State. The money ranged between N5 million to N20 million. Exhibits 226, 251 and 252 relate to the official visit of Mr. President to the state on 6/7/2009. The total sum stated on Exhibit 226 was N10.5 million. Exhibit 251 was for N3 million. Exhibit 252 was for N2.5 million.”

Abubakar Aliyu Madaki, an operative of the Economic and Financial Crimes Commission testified as PW27. He testified that in the course of investigating the allegations contained in Counts 27-32, he met with the Accountant-General of Ogun State who narrated to him the procedure for disbursement of money in the State. At pages 2160-2161 of the printed Record (volume IV), he stated as follows:
“We went to the office of the Accountant General as directed and told him our mission. He confirmed that the said payments were made to the office of the Governor. According to him, when a memo is raised in the office of the Governor for funds/reimbursement and approved by the Governor, it will be sent to the Budget Office where a release warrant will be raised and sent to his office and then his office will now raise a voucher in respect of the money after which payment will be made to the Director of Finance in the Governor’s Office who will disburse the money.”

The Accountant-General testified as PW31. At page 2186 of the printed record, he narrated the procedure for payment of money to persons, individuals and organisations as follows:
“The procedure for payment of donations made by the State Government to persons, individuals and organisations is that once the donation is approved by the State Governor, the approval will be taken to the Ministry of Budget and Planning where necessary warrant will be issued in respect of the donation and sent to the office of the Accountant General. The Accountant General will thereafter make the payment to the beneficiary. The beneficiary is to sign the voucher and Cheque Register in acknowledgment of the donation. Most donations are paid in the Accountant-General’s Office. Donations are not usually disbursed outside the office of the Accountant General. As the Accountant General of the State, disbursement of donations has never been done outside my office.”

None of the witnesses gave evidence that the monies were taken or converted by the Appellant fraudulently. There is no evidence from the Prosecution to sustain the ingredient of fraudulently converting money belonging to the Ogun State Government by the Appellant.

The Respondent did not lead any evidence to prove that the Appellant was involved in the management and running of Blue Chapel Limited, Kresta Laurel Limited and Western Publishing Company Limited whilst he was in office. It also failed to prove that the Appellant intended to permanently deprive Ogun State government of the monies allegedly disbursed from its coffers.

In the final analysis, it is apparent the Respondent failed to make a prima facie case of stealing against the Appellants. The trial Court thus erred when it failed to uphold the submission of the Appellant contained in Counts 27-32.

My learned brother has given a detailed analysis of why the trial Court should have sustained the no case submission made on behalf of the Appellant on all the counts of the information. I agree with him in toto that there is merit in this appeal and I join him in allowing it. I abide by the consequential orders made in the lead judgment.

ABBA BELLO MOHAMMED, J.C.A.: I had the privilege of reading the draft of the lead judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA. I agree that this appeal is meritorious for all the reasons and conclusions stated therein, which I fully adopt as mine.
I also hold that the trial judge was wrong to have called upon the Appellant to enter his defence when there is no evidence on the record that the Prosecution had made out a prima facie case on any of those counts for which the Appellant was ordered to enter his defence. It is only when the Prosecution has made out a prima facie case by establishing with credible evidence all ingredients of the offences for which the Defendant is charged that a Defendant will be required to enter his defence. See ONAGORUWA v STATE (1993) 7 NWLR (Pt. 303) 49, per Tobi, JCA (as he then was).

It needs to be stressed that the Prosecution of criminal offenses is not a fishing expedition. It is to be embarked only when criminal offences legally so defined have been committed, and there is sufficient evidence to justify the prosecution of a defendant for such offences. Embarking on prosecutorial fishery for non existent offences or in the absence of necessary or sufficient evidence can only waste valuable time, waste scarce public resources, lower public confidence in the responsible public institutions and subject hitherto innocent defendants to unnecessary and avoidable rigours of criminal litigation.

What is apparent in this appeal is that the Defendant was subjected to prosecution for non-existent offences and for offences for which there was clearly no evidence to substantiate. While lamenting this situation, I join in allowing this appeal and in discharging the Defendant, in total concurrence with all the detailed reasoning and conclusions contained in the lead judgment of my learned brother NIMPAR, JCA.

Appearances:

Prof. Taiwo Osipitan SAN, Titilola Osipitan SAN, with them, Deji Eniseyin, Tela Ogunlewe and Ikechukwu Chiunuwe. For Appellant(s)

Adebisi Adeniyi For Respondent(s)