DR. ERASTUS AKINGBOLA v. FEDERAL REPUBLIC OF NIGERIA & ANOR (2014)

DR. ERASTUS AKINGBOLA v. FEDERAL REPUBLIC OF NIGERIA & ANOR

(2014)LCN/7650(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 31st day of December, 2014

CA/L/490/2014

RATIO

COURT: DUTY OF A COURT; THE DUTY OF A COURT IN ITS TRADITIONAL ROLE AS AN UMPIRE

COURT; JURISDICTION; THE IMPORTANCE OF THE ISSUE OF JURISDICTION TO AN ACTION

The issue of jurisdiction is not a trivial thing that can be toyed with lightly. It is either a Court has jurisdiction or it does not have – see Onwudiwe v. F.R.N. (2006) 10 NWLR (Pt. 988) 382, where Tobi, JSC, aptly observed – “A party cannot beg or bargain jurisdiction into a matter before a Court of law; so too the adverse party cannot beg or bargain jurisdiction outside or out of a matter. Jurisdiction is an exact law that has to be applied exactly to any given case. It is either a Court has jurisdiction in a matter or it has not. In the determination of a jurisdiction of a Court, the enabling law vesting jurisdiction has to be taken in the light of the relief or reliefs sought. The moment the relief sought comes within the jurisdiction of the Court as adumbrated by the facts, the Court must assume jurisdiction as it has jurisdiction to do so. Of course, the reverse position is also correct and it is that the moment the relief sought does not come within the jurisdiction of the Court, as adumbrated by the facts, the Court must reject jurisdiction as it has no jurisdiction in the matter. To that extent jurisdiction looks almost like an exact formula in calculus, although it is devoid of actual figures and numbers”. per. AMINA ADAMU AUGIE, J.C.A.

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

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

Between

DR. ERASTUS AKINGBOLA Appellant(s)

AND

1. FEDERAL REPUBLIC OF NIGERIA
2. BAYO DADA Respondent(s)

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): The Appellant was the Managing Director of Intercontinental Bank Plc, and this is NOT his first journey to this Court. He has filed a number of appeals in relation to criminal charges brought against him at the Federal High Court and Lagos State High Court, after his removal as MD/CEO of the said Bank by the Central Bank of Nigeria [CBN], in August 2009.

Some appeals have been determined and others are for Judgment. For instance, the case of Akingbola v. The Chairman, EFCC (2012) 9 NWLR (Pt. 1306) 477, relates to a decision of the Federal High Court while that of Akingbola v. Federal Republic of Nigeria & Anor (2012) 9 NWLR (Pt. 1306) 511 dealt with a Ruling of the Lagos State High Court delivered on 31/5/11, wherein the Court dismissed his Application and assumed jurisdiction to entertain an Information against him filed by the Economic & Financial Crimes Commission in Charge No. ID/148C/2011.

This Appeal is predicated on the said Charge No. ID/148C/2011, and it centers on which Court has jurisdiction to entertain the Information dated 4/5/11 – the Federal High Court or the Lagos State High Court?
The said Information filed at the Lagos State High Court contains 26 Counts with 18 of them alleging offences of conversion and stealing of various sums of monies belonging to Intercontinental Bank Plc., against the Appellant. By an Application dated 11/3/2014, he challenged the jurisdiction of the Lagos State High Court on the following Grounds-

(i) The Complainant on the Information– is the Federal Republic of Nigeria.
(ii) The 1st Defendant is charged with the 2nd Defendant before this Hon. Court on the information dated 4/5/11 with 18 of the Counts against the Applicant.
(iii) The said 18 Counts – – are on allegations of conversion and stealing of monies belonging to the Bank (defunct) when the Applicant was the Managing Director and Chief Executive of Intercontinental Bank.
(iv) The subject matter of the alleged offences relates to banking operations, control and operation of capital issues and company related matters under the Companies and Allied Matters Act [CAMA] under Section 251(1) (d) & (e), (s), (3) of the 1999 Constitution (as amended) and item Nos. 6, 12, and 32 of the Exclusive Legislative List in Part 1 of the Second Schedule to the 1999 Constitution (as amended) respectively.
(v) In 2009, the same complainant before this Honourable Court initiated and commenced criminal proceedings against the 1st Defendant/Applicant before the Federal High Court Lagos in Charge No. FHC/L/CS/443C/09 on substantially/entirely the same subject and allegations which they are prosecuting the Applicant before this Honourable Court.
(vi) The proceedings in (v) supra have commenced and the complainant herein has even lodged two appeals to the Court of Appeal against some Rulings of the Federal High Court. The said appeals are still pending at the Lagos Division of the Court of Appeal.
(vii) The main witnesses listed in the Proof of Evidence at the Federal High Court, Lagos in Charge No. FHC/L/CS/443C/09 are the same witnesses also listed in the Proof of Evidence before this Honorable Court.
(viii) The same counsel representing the complainant in Charge FHC/L/CS/43C/09 at the Federal High Court are the counsel appearing before this Honourable Court prosecuting the Applicant for the same offences as before the Federal High Court.
(ix) The information – – before this Court constitutes an abuse of court process.

The Application was supported by a 31-paragraph Affidavit deposed to by the Appellant to which were attached four annexures – Exhibits 1-4. In opposing same, the Respondent filed a 6-paragraph Counter-Affidavit to that effect; paragraph 3 has sub-paragraphs (a) to (z) and paragraph 4 has sub-paragraphs (a) to (k). In response thereto, the Appellant filed an 11-paragraph Further Affidavit with copy of a Charge filed at the Federal High Court between FRN v. Okey Nwosu & Ors. attached as Exhibit 5.
After the adoption of Written Addresses, the learned trial Judge, Lawal-Akapo, J., delivered his Ruling on 2/5/14, wherein he held thus –

“On issue (i) all the counts listed therein – – has absolutely nothing to do with banking transaction, stocks and shares so as to attract the jurisdiction of the Federal High Court. Counsel attached the unreported Judgment – – – in (the case of) Okey Nwosu v. FRN & Ors. The offences alleged in Okey Nwosu’s case has to do with conversion and purchase of shares and stocks. The offences had their roots in capital market. The Court of Appeal held that since the alleged offences have their root in capital market the matter is therefore within the purview of the Federal High Court. In the present case, the offences alleged are stealing, receiving and obtaining money under false pretences. This is within the confines of the State High Court and I so hold”.

Dissatisfied, the Appellant filed two Notices of Appeal but he withdrew the first Notice of Appeal. His Brief of Argument settled by Chief Wole Olanipekun (SAN), Mike Igbokwe (SAN), Dr. Oladapo Olanipekun, Olabode Olanipekun, Ayo Adesanmi, Wole Okenile, Bolarinwa Awujoola and Iseoluwa Akintunde is based on the second Notice of Appeal, which has 14 Grounds of Appeal, and he distilled four Issues for Determination from the said 14 Grounds of Appeal. The four Issues are as follows

1. Considering the clear provisions of Section 251(1), (2) and (3) of the 1999 Constitution and Section 8(1) of the Federal High Court Act whether the lower Court did not fall into a grave error by assuming jurisdiction on the Information dated 4/5/2011 filed before it against the Appellant.
2. Having regard to the binding decision of this Court in Nwosu v. F.R.N. – CA/L/601/2011 delivered on 21/11/2013, as well as the Supreme Court decision in Bode George v. FRN (2013) 12 SC (Pt. 1) 1, whether the lower Court did not also fall into serious error by refusing to be bound by the said appellate Courts’ decisions.
3. Was the lower court right in dismissing Appellant’s Application when the Information before it constituted a gross abuse of the processes of court and places Appellant in double jeopardy.
4. Whether the lower Court did not fall into a very serious error in its refusal to countenance the Proof of Evidence submitted to it by the Prosecution while treating Appellant’s Application.

The 1st Respondent formulated 2 Issues in its Brief settled by Emmanuel Ukala (SAN), Godwin Obla (SAN) and Edward C. Okpe, and they are –

(i) Whether the trial Court was right when it held that it had the jurisdiction to determine the counts contained in the Information against the Appellant before it

(ii) Whether the information at the trial Court is an abuse to process of Charge No. FHC/L/CS/443C/09 pending at the Federal High Court.

The 2nd Respondent has his Appeal and did not file a brief in this Appeal. In my view, the Issues formulated by the 1st Respondent would suffice, but there is no way to go around it; the outcome of this appeal rests squarely on the question of whether this case is any different from Okey Nwosu’s case, already decided by this Division of the Court of Appeal.
However, before we venture into that arena, we need to clear up some ancillary issues, such as the material exhibited at the lower Court. The lower Court categorically stated as follows in its Ruling –

“Counsel did not furnish this Court in his Affidavit evidence with the charges and proof of evidence in Charge No. FHC/L/CS/443C/2009. It is the law that a piece of evidence which ought to be produced and is not produced will be presumed that if produced will be adverse to the case of the person withholding it I so presume in this case. See Section 167(d) Evidence Act 2011— I therefore find and hold that the charges and proof of evidence in Charge No. FHC/L/CS/443C/2009 if produced will be unfavourable to the case of the 1st Defendant. Learned Counsel – – attempted to compare the proof of Evidence in this case with the proof of evidence in charge No. FHC/L/CS/443C/2009, which is not before the Court. I discontinuance this comparison as addresses of Counsel is not substitute for evidence—“.

But the “charges and proof of evidence” were exhibited before the Court, and the Appellant contends that the lower Court jettisoned his case as it refused to consider the issues before it when it is under a duty to so do, citing Brawal Shipping Ltd v. F.I. Onwadike Co. Ltd. (2000) 11 NWLR (Pt. 678) 387; that section 167(d) of the Evidence Act does not apply against him, citing Okenzua v. Amosu (1992) 6 NWLR (Pt. 248) 416; and that it breached his right to fear hearing. He further submitted as follows-

“The Ruling of the lower Court is perverse in every material particular – – Appellant’s counsel referred the Court not only to the application, but also to the supporting affidavit and the 5 exhibits. Counsel went further to submit that the exhibits are in volumes, figuratively describing them as mountain of documents.–The exhibits were not only placed before the lower Court, they were copiously referred to in the written address and during the oral adumbration of counsel. May we further refer to paragraph 5 of the affidavit – – and Exhibits 2, 2A and 2B (the Proof of Evidence-before the Federal High Court–) Specifically— counsel elaborately treated the said exhibits, referred to and made submission on them, supported by decided authorities– Despite all these, the lower Court castigated and penalized both he Appellant and his counsel for not making the said documents/exhibits available to it”.

A Respondent’s role is to defend the decision appealed against but the 1st Respondent did not say a word or even refer to this issue in its brief, and that is not surprising as it must be difficult to defend the indefensible. The lower Court clearly stated that the Appellant did not furnish it in his “Affidavit evidence with the Charges and Proof of Evidence in Charge No. FHC/L/CS/443C/2009”; and yet, paragraphs 5-7 of his Affidavit reads –

5. That after my removal as the Managing Director/Chief Executive Officer of Intercontinental Bank Plc (now Access Bank Plc) by the Central Bank of Nigeria, the Complainant herein commenced criminal proceedings against me at the Federal High Court, Lagos in Charge No. FHC/L/CS/443C/09. Now shown to me, attached hereto and marked as Exhibit 1 is a Certified True Copy of the Amended charge in FHC/L/CS/443C/09; F.R.N. v. Dr. Erastus B. O. Akingbola.

6. I know as a fact that proceedings in the Charge No. FHC/L/CS/443C/09 have commenced before the Federal High Court after I took my plea.

7. I also know as a fact that before the Federal High Court, the Complainants herein filed a proof of evidence which is in three volumes. Now shown to me, attached hereto and marked as Exhibits 2, 2A and 2B respectively are volumes 1, 2 and 3 of the proof of Evidence in Charge No FHC/L/CS/443C/09.

What can I say to this seeming blindness on the part of the lower Court?

The Record of Appeal transmitted from the lower Court to this Court is in 5 Volumes, comprising of 1994 pages altogether. The Proof of Evidence in Charge No. FHC/L/CS/443C/2009 filed at the Federal High Court is at pages 504-1838 in Volumes 2, 3, 4 and part of Volume 5 of the Record. At the adoption of Written Addresses, Chief Wole Olanipekun, S.A.N., promptly informed the Court that he is relying on the Appellant’s Affidavit “and the 4 Exhibits attached thereto”. He also made copious reference to the Exhibits in the Written Address – see page 395 where he argued –

“We adopt the summary as encapsulated in the statement of facts and as borne out very clearly in the proceedings before the Federal High Court in Exhibits 1, 2, 2A and 2B. – – The Proof of Evidence in Exhibits 2, 2A and 2B all encompass the one before this Court in Exhibit 4. It can conveniently be submitted and we – submit that Exhibit 4 is taken out of Exhibits 2, 2A and 2B”.

In the words of the Appellant at page 28 of his Brief, “despite all these, the lower Court castigated and penalized both the Appellant and his counsel for not making the said documents/Exhibits available to it”.

It is incredible, and I cannot fathom what the lower Court was up to; not only were the processes before the Court, it went on to reprimand the Appellant and invoke Section 167(d) of the Evidence Act against him.
Section 167 of the Evidence Act allows a Court to draw inferences from known facts bearing in mind the common course of natural events, and it creates certain presumptions of fact. For instance, the Court may presume that evidence, which could be produced, and is not produced, would be unfavourable to the person, who withholds it – see S. 167 (d), which is what the lower Court presumed in this case, although the said Charges and Proof of Evidence were actually exhibited before the Court.

A trial Court owes a duty to itself and the parties before it to decide any conflict between them on the basis of the case put before it by them. When it fails in this duty, the Court has merely decided half the case and not the whole case – see Olufosoye v. Olorunfemi (1989) SC (Pt. 1) 29.
In this case, the lower Court was not in the position to point fingers because in presuming that the Appellant withheld evidence that was right there before it, the lower Court failed in its duty as an unbiased umpire. In its traditional role as an umpire, it has a duty to examine the processes filed by the parties in a matter before it thoroughly and dispassionately, and more importantly, it is expected to balance their competing interests with the utmost sense of responsibility – see N.N.P.C. v. Famfa Oil & Anor (2009) SC 5-6 (Pt. 1) 191. See also Okoduwa v. State (1988) 2 NWLR (Pt. 76) 333 at 354, where Nnaemeka-Agu, JSC, observed as follows –
“There are certain fundamental norms in the system of administration of justice we operate. That system is the adversary system, in contradistinction to the inquisitorial system. In that adversary system, parties with their counsel and the Judge have their respective roles to play. Basically, it is the role of the Judge to hold the balance between the contending parties and to decide the case on the evidence brought by both sides and in accordance with the rules of the particular Court and the procedure and practice chosen by the parties in accordance with those rules. Under no circumstances must a Judge under the system do anything, which can give the impression that he has descended into the arena as, obviously, his sense of justice will be obscured”.
In other words, the duty of the Court as an umpire is to do substantial justice to the parties in the matter before it, and the Parties are entitled to the same level playing ground in our adjudicative system of justice – see Amasike v. Reg.-General, CAC (2010) 13 NWLR (Pt. 1211) 307 SC and Willoughby v. IMB (1987) 1 SC 137, where Oputa, JSC, very aptly said –
“I think it is too late in the day to argue that the Court’s primary function is to do justice between the parties to a dispute. One sided justice will amount to injustice. Now Courts do not administer abstract justice or a “brooding omnipotence in the sky”. The law is made to ensure justice. Rules of Court are handmaids of justice. It is only by the orderly administration of law and obedience to the Rules that legal justice can be attained. When a particular decision is against all known rules; against all known principles then it is, certainly not made in the interest of justice”.
Very apt, and so simply stated – one sided justice will amount to injustice. One-sided means “unfairly weighted – dominated by or favouring one side in a competition; bigger on one side; and being on one side – see Encarta Dictionaries. In this case, the Appellant was arraigned before the lower Court and he challenged its jurisdiction on the ground that the subject matter of the alleged offences relates to banking operations, etc., and that the Respondent had commenced criminal proceedings against him at the Federal High Court in Charge No FHC/L/CS/443C/2009.
The Appellant supplied the lower Court with the proof of evidence filed at the Federal High Court so that it may compare it with the one filed before it and determine whether it had jurisdiction to try the said matter. The proof of evidence was there before it as Exhibits 2, 2A & 2B, but for some reason, the lower Court accused him of not furnishing it with same and presumed that it would have been unfavourable to him, if produced. This, to me, is one-sided justice at its highest because the lower Court considered his Application with the negative impression that he withheld the processes that were actually exhibited before it, which is most unfair. It certainly failed in its duty as an umpire, which is to see and treat both parties the same, and that is an outrage to our collective sense of justice. But the lower Court did not stop there; it also refused to look at the Proof of Evidence in the Charge before it, and its reason is as follows –

“Counsel – – made an analysis and evaluation of some of documentary evidence proposed to be tendered by the Prosecution. I find and I hold that this exercise is premature and cannot be looked into at this stage of the proceedings. It is the law that matters for substantive hearing cannot be delved into at the interlocutory stage”.

The Appellant argued that it misconstrued the position of the law; that Section 36(6) of the Constitution mandates the Prosecution to avail any person charged with a criminal offence adequate time and facilities for the preparation of his defence, and Proof of Evidence is part of facilities, and there cannot be an Information or Charge without Proof of Evidence; that Section 251(1) of the Administration of Criminal Justice Law states in clear terms that Proof of Evidence, etc., are mandatory components of an Information; that the lower Court failed and refused to comply with its own laws and it is trite that Courts of law must apply the laws of the land, citing George v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71, Gordion v. Police Commissioner (1910) 2 KB 1080; that the Legislature used the word “shall”, meaning what is to be done is mandatory not permissive, citing Bamaiyi v. A-G Fed. (2001) 12 NWLR (Pt. 727) 468, Ogidi v. State (2005) 5 NWLR (Pt. 918) 286, so the Proof of Evidence, etc., constitute condition precedent to filing an Information; that the Prosecution sold the strange idea to the Court that it cannot look at the Proof of Evidence, and yet, quoted profusely from it in its Counter-Affidavit thereby approbating and reprobating contrary to admonitions in a legion of cases, including Odutola Holdings Ltd v. Ladejobi (2006) 12 NWLR (Pt. 994) 321 and Jadesinmi v. Okotie Eboh: In Re Lessey (1959) 4 NWLR (Pt. 113) 113; and that his Application is not different from any Application to strike out an Information for not disclosing a prima facie case, citing Ohwovoriole v. FRN (2003) FWLR (Pt. 141) 2019, Abacha v. State (2002) 11 NWLR (Pt. 779) 437, and Ikomi v. State (1986) 3 NWLR (Pt. 28) 340.

The 1st Respondent, however, submitted that the said conclusion of the lower Court was reached when it found that counsel was asking it to make an evaluation of the proof of evidence at an interlocutory stage;
that its finding that it cannot at that stage look into the proof of evidence and evaluate evidence, is correct in law and cannot be faulted; that it is preposterous for the Appellant to submit that it ought to have looked into the proof of evidence; that the documents on their faces clearly disclose the linkages to establish the offences charged and show the existence of prima facie case; that it is not the stage to evaluate documents in order to determine if they prove the guilt of the Appellant; and that when read with the Statements of its Witnesses, they disclose a case against him.
It also argued that he extensively discussed the Administration of Criminal Justice Law of Lagos State but never cited any provision or section of it that insists that a Court must look into the proof of evidence whilst determining its jurisdiction beyond what it had done in its Ruling. In his Reply Brief, the Appellant pointed to paragraphs of its brief where the 1st Respondent quoted from the proof of evidence, and submitted –

“From what has been demonstrated in the reproduced portions of Respondent’s Brief and others, whereby the Respondent is urging the Court of Appeal to elaborately consider the proof of evidence, the Respondent has, either advertently or inadvertently agreed with the Appellant that the lower Court erred in its conclusion that it would not look at the proof of evidence. Respondent could not approbate and reprobate. See Odutola v. Ladejobi (2006) 12 NWLR (Pt. 994) 321. In addition, the submission of counsel is as potent as statement on oath. See Tikatore Press v. Umar (1968) All NLR 511”.

To start with, I must say that this appeal has nothing to do with evidence. The Appellant had only been arraigned before he filed his Application for an order quashing and/or striking out the said Counts in the Information. Proofs of evidence are not by themselves pieces of judicial evidence; they are summaries of the statements of the witnesses to be called at the trial by the Prosecution – see Pius v. The State (2012) LPELR-9304(CA) and FRN v. Wabara & Ors (2013) LPELR-20083 (SC).

The bottom line is that the lower Court did not go through the said Proof of Evidence before arriving at its decision to assume jurisdiction, and the issue is whether it was right to disregard the proof of evidence. So, any arguments relating to the issue of evidence will be disregarded.
The 1st Respondent made it clear from the onset that its position is that the lower Court in determining jurisdiction to entertain the Counts against the Appellant should only look at the Counts in the Information and not the Proof of Evidence. However, it went on to state as follows –
“In the unlikely event that this Hon. Court decides otherwise and overrules the Respondent the Respondent shall in arguing this Appeal make reference to the proof of evidence to elucidate/articulate the Respondent’s position that the trial Court has the jurisdiction to entertain the Counts against the Appellant”.
Obviously, the 1st Respondent is not seriously contesting this issue, and even if it were, it would not be able to hold up itself under the weight of judicial authorities that support the Appellant’s position on the subject. Using Abacha’s Case cited by the Appellant as a backdrop, we shall see that proofs of evidence cannot be ignored in Applications such as this.
In Abacha v. State (supra), which also dealt with an Application to quash an Information, he argued that from the proof of evidence, a prima facie case had not been made out against him. The trial Court and this Court refused to quash the Information. However, the Supreme Court in a 4-1 decision granted the Application and quashed the Information. Three of our former Chief Justices of Nigeria participated in the Appeal. Belgore, JSC (as he then was) stated as follows in the lead Judgment- –

“It is not the law, neither is it the justice, to say once the application is made on Information, and all necessary documents are attached, without more, the Application to prefer charge must be granted. – – There must be fact in the proofs of evidence to justify the grant of the Application. Otherwise, indictments will always be allowed to be tried where enough particulars are absent in the proofs of evidence. I must not be understood to hold that guilt of the accused must be established before approving the information to file the indictment; far from it. There must be prima facie case to be tried and the accused must be sufficiently linked to be in a situation where an explanation is necessary from him at the trial”.

Kutigi, JSC (as he then was) quashed the Information because –

“Without looking at or reading the proofs of evidence one can easily come to the irresistible conclusion that the Prosecution or the Respondent is gambling. It does not appear to know who committed the murder and who to charge in this case. If it does, the information does not point to that direction –“.

On his own part, Katsina-Alu, JSC (as he then was) had this to say –

“The proofs of evidence in this case clearly do not disclose an offence against the Appellant and I do think that his trial will amount to an abuse of process. In that case, the Information will be quashed. It is a matter of great joy that the Courts have an inherent jurisdiction to prevent abuse of their process. It must be emphasized here that the judicial power, which is conferred on the Courts is intended to be used in deciding issues in genuine cases or controversies”.

This is the Supreme Court talking and from their respective reasoning, we are gratefully guided to an answer to the question before us, which is that in an Application like this that challenges the Jurisdiction of a Court, it would be a huge mistake on its part to disregard the proof of evidence.

“A party cannot beg or bargain jurisdiction into a matter before a Court of law; so too the adverse party cannot beg or bargain jurisdiction outside or out of a matter. Jurisdiction is an exact law that has to be applied exactly to any given case. It is either a Court has jurisdiction in a matter or it has not. In the determination of a jurisdiction of a Court, the enabling law vesting jurisdiction has to be taken in the light of the relief or reliefs sought. The moment the relief sought comes within the jurisdiction of the Court as adumbrated by the facts, the Court must assume jurisdiction as it has jurisdiction to do so. Of course, the reverse position is also correct and it is that the moment the relief sought does not come within the jurisdiction of the Court, as adumbrated by the facts, the Court must reject jurisdiction as it has no jurisdiction in the matter. To that extent jurisdiction looks almost like an exact formula in calculus, although it is devoid of actual figures and numbers”.

In this case, I agree with the Appellant that in the peculiar circumstances of this case, the lower Court needed to have read the proof of evidence. However, it seemed to have an aversion to Proofs of Evidence because it turned a blind eye to the Proof of Evidence at the Federal High Court, and refused to look at the Proof of Evidence in the Charge before it.
The question to ask now is – what is the effect of its heedlessness? To find answers, we have to look at the case of yet another Bank Chief – Francis Atuche of Bank PHB (now Keystone Bank), who also appealed against a similar Ruling by another Judge of the Lagos State High Court. In Atuche’s Case, the learned trial Judge deferred taking a decision as to whether or not to apply the decision of this Court in Okey Nwosu’s case. In the lead Judgment of this Court, Sankey, JCA, very aptly observed –

“The issue of jurisdiction raised by the Appellants Motion, being crucial and fundamental to the determination of the suit before the lower Court was of paramount importance and it should have been attended to before any further step was taken in the matter. Thus, the failure of the Court below to consider the Motion on its merit and at the same time and in the same breath acknowledging the decision in Okey Nwosu v. FRN (supra), while proceeding to dismiss the application has invariably occasioned a miscarriage of justice. This is in addition to constituting a breach of the Appellants right to a fair hearing on his Motion”.

So, in Atuche’s case, the learned trial Judge acknowledged the decision of this Court in Okey Nwosu’s case but refused to consider the question of whether the decision applied to his case and deprived it of jurisdiction. In remitting the case back, the special panel that heard the Appeal held –

“- -The choices available to this Court have been strictly restricted to one option, which is to send back the case for re-hearing of the Motion on its merits for the determination of the sole Issue evoked by the relief in the Motion which essentially is: whether the decision in Okey Nwosu v. FRN (Supra) operates to deprive the lower Court of jurisdiction to proceed any further with the determination of the criminal charge against the Appellant – – In the circumstances, the Appeal is meritorious and is accordingly allowed. The Ruling – – in respect of the Motion filed – – in Charge No. ID/154c/2011 between: F.R.N. v. Mr. Francis Atuche & 2 Ors is accordingly set aside. The Motion is hereby sent back to the Hon. Chief Judge of the Lagos State High Court for accelerated hearing on the merit before another Judge”.

In this case, the situation is not quite the same. The lower Court held –

“Counsel attached the unreported Judgment of the Court of Appeal, Lagos Division in Appeal No: CA/L/601/11 – Okey Nwosu v. F.R.N. & Ors. The offences alleged in Okey Nwosu’s case have to do with conversion and purchase of shares and stocks. The offences had their roots in capital market. The Court of Appeal held that sine the alleged offences have their root in capital market the matter is therefore within the purview of the Federal High Court. In the present case, the offences alleged are stealing, receiving and obtaining money under false pretences. This is within the confines of the Sate High Court and I so hold”.

The lower Court may not have read the Proofs of Evidence or analyzed the full picture of the matter in its true colours, but it took a definite stand; it decided that the decision in Nwosu’s Case does not apply to this case, and it had jurisdiction to try the Appellant for the said offence of stealing. In effect, unlike Atuche’s Case, we have reason to hold onto the Appeal, and as I said from the very beginning, this appeal turns on the question of whether our decision in Okey Nwosu’s case is applicable in this case.
Okey Nwosu, the former Group Managing Director of Finbank Plc., was one of the Bank Chiefs removed by CBN, and arraigned before the Federal High Court and Lagos State High Court to face criminal charges. The Lagos State High Court dismissed his Preliminary Objection, and on appeal to this Court, the Appellant contended inter alia that the Lagos State High Court was wrong to hold that the Charge against him at the Federal High Court and the Charge against him before the Court were not factually the same; and the Charge before it was not an abuse of process notwithstanding that both Charges arose from the same set of banking transactions arising at the same period of time. In its Judgment delivered on 21/11/2013, this Court per Bage, JCA, held as follows –

“- – – – What is, therefore, in existence is the fraudulent conversion of funds of the Banks as instructed, into shares. If the funds in question have turned into shares which is an issue in the Capital matter, on the High Court of Lagos State, therefore, invoke its jurisdiction on such matter, on a charge of stealing. – -The Respondent had admitted – – that the Control of Capital issues is listed – – as No. 12 in the Exclusive Legislative List and offences relating thereto may only be properly prosecuted at the Federal High Court. Why will the Prosecution then resort to another charge of stealing at the High Court of Lagos State when the existence of the thing said to be stolen is turned under the control of Capital issue? Put it in another way, will there be any evidence at the High Court of Lagos State, which is different from the evidence that will be before the Federal High Court on the existence of the thing stolen. – – The pith and substance of the complaint of stealing as evidenced by the conversion as instructed into shares, concerns a matter of capital issue, which is Item 12 on the Exclusive Legislative List. By Section 251(1)(s) of the Constitution – – the Federal High Court, to the exclusion of any other Court is conferred with the jurisdiction to entertain matters over which only the National Assembly an legislate”.

He referred to Section 25 of the Interpretation Act, and further stated –
“- – The law has made the prosecution of the offence or offences alleged against the Appellant exclusive to the Federal High Court. Any other charge or charges in any other guise relating to the issue before any other Court is void ab initio, and of no effect whatsoever for lack of jurisdiction. The act of the Respondents is like putting something on nothing. No doubt it will not stay; it will collapse. See the famous dictum of Lord Denning MR. in the case of UAC v. Macfoy (1961) 3 All ER 169 at 172 – – – The Charges placed at the High Court of Lagos State by the Respondent against the Appellant is incurably bad for lack of jurisdiction”.

This is our decision in Okey Nwosu’s case that the Appellant, a former bank chief, who was arraigned at the Federal High Court for bank-related offences before he was brought to the Lagos State High Court to answer to sundry charges of stealing, and who also challenged the jurisdiction of the Lagos state High court on similar grounds, is basing his case on.
He canvassed arguments on the issue of jurisdiction, and in particular –

– Section 251(1)(d), (e), (s) and (3) of the 1999 Constitution as well as Items 6, 12 and 32 of the Exclusive Legislative List of same.
– Sections 8(1) of the Federal High Court Act.
– The doctrine of ‘covering the field’ in legislation – A-G Abia State v. A-G Federation (2002) 6 NWLR (Pt. 763) 264 at 431-432 cited.
– The phrase “subject to” in Section 272 of the 1999 Constitution – Oke v. Oke (1974) 1 All NLR 443 at 450 and Labiyi v. Anretiola (1992) 1 NWLR (Pt. 258) 139 at 163 – 164 cited.
– The effect of the absence of jurisdiction on a proceeding – Okoye v. Okonkwo (2006) All FWLR (Pt. 332) 1526, Okolo v. Union Bank of Nigeria Plc. (2004) All FWLR (Pt. 197) 981 at 992, Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508, Madu v. Mbakwe (2008) 10 NWLR (Pt. 1095) 293 at 325-326 and Obada v. Military Gov. of Kwara State (1990) 6 NWLR (Pt. 157) 482 cited.
– The basic features of a Court’s jurisdiction set out in the celebrated case of Madukolu v. Nkemdilim (1962) 2 All NLR 581 at 589-590.
– The import of the words “exclusive” and “also” used in Sections 251(1) and (3) of the 1999 Constitution as Amended.
– The Latin maxim ‘expressio unis est exclusio alterius’ Abacha v. FRN (2006) 4 NWLR (Pt. 970) 239 at 309 – 310 cited.
– The Counts against him vis-a-vis the Proof of Evidence and the documents produced by the Respondent as encapsulated in Exhibit 4 contained at pages 1606-1838 of Vol. 5 of the record.
– The evidence of the key witness – one Abdulraheem Yinka Jimoh.

Of course, the Respondent proffered its own arguments in response to the Appellant’s submissions on the issue of jurisdiction, and other issues. But this is where I will draw a line in the sand and say, this far and no more; the decision in Okey Nwosu’s case emanated from this Division where I am the Presiding Justice, and I refuse to comment on issues dealt with in that case on the ground that anything I do say may be construed or seen as an affirmation of the decision or disagreement with the said decision, which is outside my league; it is only the Supreme Court that can do that. So, I will concentrate on what I am constrained to do – resolve the issue before us, and that is whether the decision in the said case applies here.
The Appellant’s position is that the said decision in Nwosu’s Case is directly on all fours with the Application and/or Information in this case. He argued that the Information therein are the same in terms of drafting, content, presentation, style and arrangement, as the Information herein; that the Counts against Nwosu are simply in respect of stealing, which is the same as the Counts against him; that on the face of the Information in Nwosu Case, there is no Count that has to do with conversion and purchase of shares and stocks, and none that says anything relating to capital market; that it was through the Proof of Evidence that this Court rightly came to the conclusion, having perused same, and held thus –

“The Court in determining whether it possesses the jurisdiction over an action initiated before it has the bounden duty to peruse at the report of the investigators assigned to investigate the petition and what they discovered which formed the basis of the charges preferred against the Appellant.”

Furthermore, that this Court on to hold that to determine whether or not the Lagos State High Court has jurisdiction over the offence of stealing, the existence of the things stolen as well as its components must be considered with the report of the investigators before the issue of the Court’s jurisdiction would be determined; and that this Court again reproduced extracts from the Reports before arriving at its conclusion.
He submitted that Nwosu’s Case is not only binding on the lower Court but also impeccable, and the decision is sound in law and logic; that what the lower Court did was to circumvent it, citing inapt decisions; that the case of Alli v. State (2012) 10 NWLR (Pt. 1309) 589 relied upon, is not even remotely connected or applicable to the Application before it; that what happened here is akin to the background to the decision of the Supreme Court in Atolagbe v. Awuni (1997) 1 NWLR (Pt. 522) 536, where the Supreme Court chastised a Kwara State High Court Judge for failing to follow and be bound by a Court of Appeal decision – Dr. M. Okenjo v. Dr. M. Odje & Ors (1955) 10 S.C. 297 also cited; and that it is trite law that a Court does not expand its jurisdiction but can expound it, citing Kasiku Farms v. A-G Bendel (1986) 1 NWLR (Pt. 19) 695 and A-G Federation v. Abubakar (2008) 16 NWLR (Pt. 1112) 135 at 158.
As expected, the 1st Respondent has a contrary view and contends that the said decision is inapplicable. Pointing to the Counts against the Appellant, he submitted that his spirited attempt to bring acts for which he was charged within the sphere of banking, is untenable because –

– The Information did not charge him for granting unauthorized loans or breaching any of the banking regulations in Nigeria nor with any of the offences contained in Banking and Other Financial Institutions Act.

– The fact that the proof of evidence, apart from revealing how he stole and converted the bank’s money also revealed that he breached its regulation while purporting to grant loans, is not material or relevant to the Information since he was not charged for breaching any banking regulation at the trial Court.

– The offence of stealing/fraudulent conversion of the bank’s property, which he was charged with, can only be tried by the lower Court and not the Federal High Court – Olubeko v. F.R.N. (2004) LRELR-22632, and Daboh & Anor v. STATE (1977) NSCC 309 cited.
– The Supreme Court defined “banking” in NDIC v. Okem Ent. Ltd (2004) 10 NWLR (Pt. 880) 107, and the answer to the question – does any of the acts of stealing or fraudulent conversion of the Bank’s money for which the Appellant was charged at the lower Court constitute banking within the definition of banking?, is in the negative.

It submitted that the Appellant’s acts, which he is trying to camouflage as acts of banking are Criminal acts that have no real nexus whatsoever with any act of banking; that the Appellant cannot act like Pontius Pilate and wash his hands off his huge loss suffered by the bank with respect to his own acts; that Nwosu’s Case is not applicable because the thing allegedly stolen were shares not money; and that it was fund belonging to the bank that was converted into shares, which is why this Court held –

“What is therefore in existence is the fraudulent conversion of funds of the Bank as instructed, into shares, if the funds in question have turned into shares, which is an issue in Capital Market, and the High Court of Lagos State therefore invoke its jurisdiction on such matter, on a charge of stealing”.

Furthermore, that another cogent reason why the said decision does not apply is that it derived it’s authority from a decision of this Court in FRN v. Eze (1982) 3 NCLR 259 that was set aside by the Supreme Court in Eze v. FRN (1987) 1 NWLR (Pt. 51) 506; that the attention of this Court was not drawn to the Supreme Court decision in Eze v. FRN (supra) and “it is most unlikely that following the ordinary rule of stare decisis that [this] Court in Nwosu’s Case would have arrived at the conclusion it reached if it was aware of the Supreme Court position in Eze v. FRN”; that in the light of the fact that this Court in Nwosu’s case relied heavily on the decision of this Court in FRN v. Eze, which said decision has been set aside by the Supreme Court in Eze v. FRN, the lower Court was right not to have followed the decision of this Court in Nwosu’s case even if it were to be applicable, citing Olutola v. Unilorin (2004) 18 NWLR (Pt. 905) 416, Sule Sanni v. Durojaiye Ademiluyi (2003) 3 NWLR (Pt. 507) 318 & Bob-Manuel v. Woji (2010) 8 NWLR (Pt. 1196) 260 and that –

“Since the decision of the Supreme Court in the case of EZE v. FRN overruled the Court of Appeal decision in FRN v. EZE the trial Court had no option but was under an obligation by doctrine of stare decisis to follow the Supreme Court decision in EZE v. FRN. The trial Court ought to be commended and not be crucified for relying on the Supreme Court decision in EZE v. FRN (Supra)”.

I am confused and at the same time alarmed at what the Respondent seems to be saying; that the lower Court should be commended and not crucified for refusing to abide by our decision in Okey Nwosu’s case?

How can a High Court refuse to abide by the decision of this Court on the ground that its decision is based on a decision that has been overruled? Surely, the Respondent’s stance is nothing but a call to judicial anarchy – see LMB Ltd v. PTF (2006) 5 NWLR (Pt. 974) 463, wherein it was held-
The principle of stare decisis, I think, has imposed an obligation on lower Court to be bound by the decisions of higher Courts. Deliberate refusal to so be bound amounts to judicial impertinence, which is capable of enthroning judicial rascality and anarchy in the judicial hierarchy. This must be eschewed and discouraged by Judges”.

All in all, this is actually a call to lower Courts to take up arms against the doctrine of stare decisis, which is said to be, “the discipline of the law, and what makes the law certain and prevents it from being an ass”- see Okonjo v. Dr. Mudiaga Odie & Ors (supra), where Eso, JSC, observed –

“In the hierarchy of the Courts in this country as in all other common law countries, one thing is clear, however unlearned a lower Court considers itself to be and however contemptuous of the higher Court, the lower Court is still bound by the decision of a higher Court. I hope it will never happen again whereby the Court of Appeal in this country or any lower court for that matter, would deliberately go against the decision of this Court, and in this case, even to the extent of not considering the decisions when those of this court were brought to the notice of that Court. This is the discipline of the law; that is what makes the law certain and prevents it from being an ass”-
The 1st Respondent is, more or less, advocating that a lower Court can sit on appeal over a decision of a higher Court, and choose which of the decisions of a higher Court it will abide by and which one it will not apply, which is an anathema to the doctrine of stare decisis – see Unilag & Ors v. Olaniyan & Ors (1985) 1 SC 295, where Eso, JSC, very aptly said –

“When a lower Court is faced with the construction of a rule in pari material with one that has been construed by this Court, the lower Court has no option but to follow the principle laid down by this Court in its construction of that rule. What will be left for the lower Court is to apply the laws laid down by this Court to the peculiar facts of the case before it. The lower Court has no business with whether or not the decision of this Court therein is right or wrong. In the hierarchy of Courts, one principle has been established beyond par, and that is, that lower Court is bound by decision of the higher Court”.

The 1st Respondent also argued that the Appellant’s contention that the lower Court circumvented our decision in Nwosu’s case, is fallacious; that all that the lower Court did without overruling the said decision was to hold that Section 251(3) of the Constitution does not confer exclusive criminal jurisdiction on the Federal High Court with respect to matters listed in Section 251 of the Constitution; and that nowhere did it state that it was overruling the decision of this Court in Okey Nwosu’s case.
It conceded that it is bound to follow the decisions of higher Courts but added that it is not bound under the doctrine of stare decisis to follow the decisions of higher Courts when the facts/issues in those decisions does not tally with what is called for determination in the trial Court; that the trial Court is not bound to follow hook line and sinker any decision of a higher Court cited before it especially, where as in this case, the case was clearly distinguishable, citing C.N. Ekwuogor Inv. (Nig.) Ltd v. Asco Invest Ltd (2011) 13 (Pt. 1265) 565 at 582 and that the lower court, having found that the Counts against the Appellant were for the offence of stealing by conversion, which had nothing to do with, banking, capital market or CAMA was under no obligation to follow the principle of law in Okey Nwosu’s case, which found that the Counts in the Okey Nwosu’s Case related to shares and they, therefore, constituted capital market transactions within the exclusive jurisdiction of the Federal High Court.
The Appellant countered in his Reply Brief that the Respondent deliberately ignored “salient portions” of the Judgment in Nwosu’s case. He conceded that this Court referred to Eze’s case while reviewing the submissions of counsel, but argued that thereafter, it meticulously considered the Counts, Proof of Evidence, provisions of the Constitution, ingredients of offence, and the fraudulent conversion of funds of Finbank Plc etc., and in doing so, the Court was also guided by Supreme Court decisions, which it referred to constantly and made itself bound by them.

The Appellant and 1st Respondent have made their positions clear, and it must be apparent from what has been said so far that the outcome of this Appeal is inextricably tied to the lower Court’s failure to peruse the Proofs of Evidence before arriving at its decision to assume jurisdiction. The point must be made and made firmly that the decision of this Court in Nwosu’s Case was based on the Proof of Evidence, which this Court perused to find that the charge of stealing on the face of the Information, was not what it was cut out to be, but were related to banking matters.

In this case, the lower Court did not read the Proofs of Evidence, and yet was quick to hold that the decision in Nwosu’s case did not apply because the Counts against the Appellant in the Information before it – “has absolutely nothing to do with banking transaction, stocks and shares so as to attract the jurisdiction of the Federal High Court”.

Apparently, the lower Court took a narrow view of the decision in Nwosu’s Case, and restricted it to offences with roots in capital market, without addressing its mind to the fact that the 26 Counts against Nwosu alleged stealing simpliciter, same as this case, where the Counts against the Appellant allege stealing simpliciter. For instance, counts 1-3 allege:

STATEMENT OF OFFENCE – COUNT 1
Stealing contrary to Section 390 (7) of the Criminal Code Law Cap 17 – –

PARTICULARS OF OFFENCE

Dr. Erastus B. O. Akingbola, whilst being the MD/Chief Executive Officer of I.B. Plc., sometime in March, 2009, in Lagos, within the jurisdiction of this Court stole the sum of & 8,540,134.58 (Pounds Sterling) property of Intercontinental Bank Plc by fraudulently converting same to your own use.

STATEMENT OF OFFENCE – COUNT 2
Stealing contrary to Section 390 (7) of Criminal Code Law –

PARTICULARS OF OFFENCE
Dr. Erastus B. O. Akingbola – – sometime in July, 2009, – stole the sum of 1,300,000.00 [Pounds] – – by fraudulently converting same to your own use.

STATEMENT OF OFFENCE – COUNT 3

Stealing contrary to section 390 (7) of the criminal code Law-

PARTICULARS OF OFFENCE

Dr. Erastus B. O. Akingbola – – sometime in March, 2009 in Lagos – stole the sum of N2,108,135,484.68 property of [the] Bank by fraudulently converting same to the use of Intercontinental capital Markets Ltd.

The Appellant set out salient portions of the Proof of Evidence in its brief, which has not been disputed by the Respondent, and I will reproduce it –

– The Statement of Abdulraheem Yinka Jimoh in Exhibit 4, as follows –
“Shortly after the intervention of CBN in the operation and management of commercial banks in Nigeria in August 2009, one of our correspondent banks (Deutsche Bank London) sent an Anti’919197Money Laundering (A.M.L.) enquiry on 3/9/2009 to the Bank seeking to confirm that two transactions ?8.5 million & ?1.3 million & transferred on behalf of the former MD of the bank Dr. Erastus B. O. Akingbola were genuine and comply with AML requirements. These transactions were carried out in March and July 2009. “The process of approving the deposit placement limit in ICML by Dr. Erastus Akingbola on the 11/3/2009 from N2 billion to N5.5 billion, which enabled the bank’s treasury to be able to place more funds at the disposal of I.C.M.L. for lending to Regal Investment Ltd was in itself improper. In practice, previous approvals in the bank had been through the Asset and Liabilities Committed (ALCO) and ratification by EXCO as contained in the attached approval memo dated of 22/5/2008. Proper approval of the request would have required the approval of ALCO members, not simply the approval of a single member. Had ALCO actually considered this application, they would have (at the very least) required proper review of I.C.M.L.’s claim of a “growing portfolio” before approving the increase and pushing same through the market risk unit of the bank to EXCO for ratification. Details of the composition and duties of ALCO can be found in the bank’s Market & Liability Risk policy — ALCO is made up of the following officers of the Bank: CEO, Chief Risk Officer; Chief Financial officer; Financial Controller; Corporate Treasurer; Foreign Treasurer; Group Executives for Group Market Risk Management; Enterprise Risk Management; Performance Management; and Key Business Unit Heads. Section 13 of the Market & Liquidity Risk Policy provides an exception to ALCO approval where it states “Whenever circumstances require a prompt action that will violate a provision of this policy but is nevertheless prudent, the CEO and the Board Risk Committee shall be authorized to approve the policy exception. No such exception may be authorized however, if it would cause the bank to violate an applicable law or regulation. All authorized exceptions must be reported to the board of directors at its next regular scheduled meeting and must be affirmed by the board.” The board’s affirmation of such exceptions must be documented in the minutes for that meeting. From our investigations, no such approval was ever sought from the board and as at 11/3/2009, I.C.M.L. had fully utilized its deposit placement limit of N2 billion with the bank as shown in the attached schedule of placement by IBPlc with ICML.”. “It was discovered ‘919197’919197 that on 10/3/2009, Regal Inv. Co. Ltd. had requested for a placement line from I.C.M.L. in the sum of N3,200,000,000.00’919197’919197’919197 for which I.C.M.L. granted only N2,100,000,000.00 at 30 days maturity effective from 13/3/2009 ‘919197’919197 a day after the ?8,540, 134.58 had been transferred out of the banks NOSTRO ACCOUNT. Further investigations revealed that the placement was actually the POFI sources from I.B. Plc’s Corporate Treasury Department and at the time of request and agreement with Regal Inv. Co. Ltd., I.C.M.L. did not have the financial capacity to support the placement being an institution registered for trading in Capital Markets neither was the request considered or approved by its Board (I.C.M.L.).” The procedure adopted in the accounting treatment of the deposits of the bureau de change operators — is highly irregular and improper — There was no signed instruction from Dr. Erastus B. O. Akingbola authorizing the above referred transaction. This also is highly irregular/improper banking procedure” “There was no loan or facility granted to Dr. Erastus B. O. Akingbola to fund the transfer prior to the transaction but he — using his position as the Managing Director of the Bank caused the said funds to be transferred for his use without adequate fund in his domiciliary account thereby granting himself an unauthorized credit facility.”(Highlight his) “On 1/7/2009, the bank’919191s USD NOSTRO account at Deutsche bank London’919197’919197 was debited with the sum of USD 2,036,700.00. 13/7/2009, the same account was debited with the sum of USD 154,828.50. ‘919197’919197 These two debits amounted to USD 2,191,528.80 and was transferred to the GBP NOSTRO account of the Bank at Deutsche bank London in the amount of ?1,300.000”. “On 13/7/2009, Dr. Erastus B. O. Akingbola issued an instruction that the sum of ?1,300,000 only, being the Pounds Sterling equivalent of USD 2,191,528.80 only, should be transferred from his Account and credited to the Royal Bank of Scotland Account of Fuglers Solicitors. This internal memo from [him] regarding the transfer was not signed and at the date of this instruction, his account balance was ?25,209.68. On 13/7/2009, the sum of ?1,300,000.00 was transferred to the Royal Bank of Scotland account of Fuglers Solicitors from [the] Bank’919191s NOSTRO account with Deutsche Bank AG but in actual fact Dr. Akingbola has caused the bank’919191s funds to be used as early as 1/7/2009”. “Pursuant to our investigations which revealed many, fraudulent manipulations of [the] Bank’919191s General Ledger Time Deposit Account, our investigations were extended to other general ledger accounts wherein we observed that the sum of N2,500,000,000.00 was transferred to Skye Bank Plc. on 11/3/2009 by RIGs (Real Time Gross Settlement) in favour of Chartwell Securities Ltd. Our investigations revealed that on 27/2/2009, Messrs. Chartwell Securities Ltd. issued two Skye Bank Plc’919191s Cheques ‘919197’919197’919197 both of which were dated 27/2/2009 for the sums of N1,068,000,000.00 and N1,432,000,000.00 ‘919197’919197 only drawn up in favour of Tropics Finance Company Ltd.” [All highlight his]
“On 20/5/2009 the Financial Controller – – instructed the then GE, Domestics Operations – – to debit [the] Bank’s Prepayment General Lodger Account with the sum of N3,350,000,000.00 – – for distribution as follows – Intercontinental Homes Ltd – N350,000,000.00; Intercontinental Securities Ltd N500,000,000.00 Intercontinental Capital Markets Ltd, – N2,500,000,000.00 Further to the course of investigation we sought clarification on the purpose and utilization of the N2,500,000,000.00 from Intercontinental Capital Markets Ltd. The Company (I.C.M.L.) claimed that the two Skye Bank Cheques issued in favour of Tropics Finance Company Ltd by Chartwell Securities Ltd and eventually credited to Intercontinental Capital Markets Ltd were repayments made by one of their facility customers, Messrs. Tropics Finance Ltd. Our investigation revealed that the N2,500,000,000.00 in reference initially was N2,000,000,000.00 facility granted to Tropics Finance Co. Ltd on 10/10/2007. Due to accumulated interest over the years, as at May 2009, the facility had risen to N2,613,000,000.00. On 15/5/2009 Tropics Finance Company Ltd. paid the sum of N2,500,000,000.00 as part payment of the facility granted and in June 2009 the sum of N35,000,000.00 was paid by Tropics Co. Ltd. as full and final payment. The N2,500,000,000.00. facility in reference was collaterised with 123.511,868 units of Intercontinental Bank Plc. shares belonging to Mr. Peter Akingbola, Mrs. Anthonia T. O. Akingbola and Dr. Erastus B. O. Akingbola who – – is both Chief Executive Officer, (CEO) and Chairman of Tropics Finance Company Ltd. The personal guarantee of Dr. Erastus B. O. Akingbola was used to secure the facility.” (Highlight his)

“The three Managers Cheques were subsequently drawn up and issued in the specified company names. This was achieved by debiting [the] Bank’s general ledger time Deposit Account – – which pursuant to our investigation we traced and found them (the specified names) to be domiciled in Access Bank Plc. – – We applied to Central Securities Clearing System Ltd. (C.S.C.S.), to furnish us with the details of all the Intercontinental Bank Plc. Shares traded by Tropics Securities Ltd. during the relevant period, which information they supplied to us and we discovered that during the relevant period Tropics Securities Ltd. only traded in Intercontinental Bank Plc shares to the tune of N4,314.436.815.84 only, though have not seen documentation establishing these transactions nor could we establish any purpose for these transactions”. [Highlight his]
“Following the discovery of the way which General Ledger (GL) accounts were manipulated in order to issue the three Manager Cheques for N10 billion to Bakinson Nig. Ltd., Tropic Securities Ltd and Tropics Properties Ltd, Inspection department was mandated to further review the Bank’s GL account for transactions that appear suspicious. These investigations resulted in the discovery that transfers in the aggregate of N8,684,500.000 were made on 11 dates during the period between 13th May 2009 and 30 June 2009 from the prepayment account and all the money were discovered to be used for the benefit of companies related to Dr. Akingbola as detailed below – – -”

The Appellant also referred to other documents in the Proof of Evidence, which he argued, clearly evince that the entire Counts revolve around banking transactions and dealings in shares and stocks, as follows –

i. Memo from the Financial Controller to the Corporate Treasurer dated 11/5/2009 written by Akin Fabunmi on page 22 about issuance of shares.
ii. Cheques on pages 23 and 24 [that] clearly relate to banking matters.
iii. Letter dated 11/11/2009 from Access Bank officials to the Chief Inspector on page 25 headed “Re: Enquiry in respect of IB. Plc. Managers Cheques…” stating the Acc. names, directors & signatories – a purely banking issue.
iv. Letter dated 15/5/2009 to the Group Chief Executive titled “Payment for Shares Purchases” on page 26 talking of payment of shares bought.
v. Letter on Intercontinental Home Savings & Loans Ltd letter head to the Chief Inspector of I.B. Plc., dated 15/12/2009 on page 27 relating to transfer of money for the purpose of purchasing shares of blue chip companies.
vi. Another letter from Intercontinental Homes Savings & Loans Ltd. dated 26/5/2009 on page 28 about money for purchase of blue chip companies.
vii. A letter written on Intercontinental Securities letter head dated 15/12/2009 on page 31 issuing a cheque in favour of Bankinson Nigeria Ltd.
viii. Letter dated 19/5/2009 from Tropics Securities Ltd on page 32 [that] talks of raising a cheque of N267,881,941.50 in favour of Bankinson Nigeria Ltd.
ix. An internal memorandum dated 22/5/2009 on page 33 [that] talks about request that a cheque be issued for N267,881,941.50
x. Letter dated 17/4/2007 to the MD of Tropics Security Ltd on page 35 about the advantage of investment opportunities in the Capital Market. It is also conveying loan approval of N250,000,000 to Tropics Securities Ltd.
xi. An I. B. Plc., letter dated 21/12/2009 to the Chief Inspector of First Bank on page 42 [that] talks of the Managers cheques.
xii. All the documents, letters and cheques on pages 45 to 61 [that] relate to transfer of funds, which are banking matters.
xiii. Two letters dated 28/12/2007 and titled “Placement Limits for Banks and Discount Houses” on pages 110-112 state the details of the limits for their foreign and local currencies trading counterparts. [Highlight his]
xiv. Memo dated 23/11/2007 titled “Trading Products Grid and Dealing Limits for the Bank’s Approving officers’ on Page 113 with bank transactions –
“In line with the decision taken at the ALCO meeting of 23/11/2007, please find below details of Trading Products Grid Limits in respect of Foreign and local currencies products that are actively traded – – on a basis as well as Limits for the Bank’s offices.

Product Set Limit Market Size
Treasury Bills N130,000,000,000 N1,300,000,000,000

FGN Bonds N80.000.000.000 N800,000,000,000

Foreign Bonds $50,000.000 N/A

Inter Bank Discount & Discount House Placement
N150,000,000,000 N500,000,000,000

Inter Bank & Discount House Borrowings
N50,000,000,000 N500,000,000,000

Foreign Currency Open Positions
$25,000,000 $200,000,000 daily
Intra Day Limit $62,500,000

Single Third Currency Limits $2,500,000
Risk Assets & BA/GCPSN250,000,000,000
N1,500.000.000.000
(xv) Letter on First Bank Plc. letterhead dated 29/1/2010 on page 45 addressed to the Chief Inspector of I.B. Plc titled “Re: Enquiry in respect of I.B. Plc cheques 2113, 9143, 9066, 9047” that states “We refer to your letter dated 21/12/2009 and advise that the Managers Cheques were utilized to liquidate the term loan granted Bakinson Limited.” “The above document and two other tables on page 114 reveal beyond any form of doubt that the transactions are banking matters”.
(xv) Letter on Tropic Finance Investment Co. Ltd. letter head dated 18/5/2009 to the Treasurer, I.B. Plc titled “Fixed Deposit Placement” on page 50 [that] states – “Kindly debit our special account – – with the sum of N1,500,000,000 and place the funds in fixed deposit for 30 days at 18% p.a.”
(xvii) Another letter on Tropics Finance & Investment Co. Ltd letter head to the Manager, I.B. Plc dated 12/6/2009 and titled “Part Liquidation of Special Account 1-#0111-001000352735 on page 58, which states “Kindly debit our above named account and issue us a cheque for the sum of N200,000,000.00 – I.F.O. Tropics Properties Limited” a pure banking transaction that is in the purview of the Federal High Court. Same as a letter dated 8/6/2009 on page 61 of the Proof of Evidence Exhibit 4 with same topic which states “Kindly debit our above named amount and transfer the sum of N25,000,000.00 – I.F.O. Tropic Security Ltd”.

The Appellant invited us to look at these Counts vis-a-vis the Proof of Evidence and documents produced by the Respondent as encapsulated in Exhibit 4 at pages 1606 -1838 of Vol. 5, and further submitted that –

– Count 1 talks about conversion of the property of the bank so it is a banking matter. The particulars of the offence expressly state that – “Dr. E. B. O. Akingbola, being the Managing Director and Chief Executive Officer of Intercontinental Bank Plc. – -”

– Count 2 has similar particulars as Count 1, and it is a banking matter.
– Count 3 follows the same pattern with Counts 1 and 2.
– Count 4 is the same but goes on to allege conversion of the money for the use of Bankinson Nig. Ltd, which are matters covered by CAMA over which the Federal High Court has exclusive jurisdiction.
– Count 5 also alleges diversion of funds and adds that he is a Director of Tropics Finance Ltd., which are issues outside its jurisdiction.
– Count 6 follows same pattern as Court 5 and alleges his Directorship in the Bank and the said Company Tropics Finance Limited.
– Ditto for Counts 7, 8, 9, 10, 11, 1 2, 13, 14, 19, 21, 23 and 25.
– In all the Counts, the Complainant alleges that he used his position as MD/CEO of the Bank and converted and/or stole monies belonging to the said bank in series of banking transactions or dealings that revolve around loans granted to companies in which he is also a Director and in respect of claim of purchase, trading, and payment for shares and stocks of the Bank by the Tropics Securities Ltd.
– And that a common feature in all the Counts or most of them is that they allege conversion of shares from one company to the other, so ex facie, the Counts themselves divest the lower Court of jurisdiction.

The Respondent countered that the said Counts do not relate to banking, CAMA or capital market but relate to money belonging to the said Bank; that they never alleged conversion of shares from a company to another; and that the thing converted or stolen is money not shares belonging to the bank. It referred to the Statement at pages 92-105 and argued that –

“A person who stole money from the bank, whether by electronic transfer or by physical breaking into the vaults of the bank or even in the course of a robbery is nevertheless a thief whose offence includes stealing. Such criminal conducts certainly do not fall within the contemplation of banking, foreign exchange and fiscal measures – – Counts 3-13, 19, 21, 23, and 25 do not relate to any share or acts of banking. The Counts rather relate to how the Appellant converted the Bank’s money to his own use and the use of his own companies. These complicated but fraudulent transactions were explained at page 92-105 of volume 1 of the Record of Appeal”.

The Appellant noted in his Reply Brief that though it strenuously argued that the lower Court was precluded from looking at the proof of evidence, the same Respondent drew the lower Court’s attention to the proof of evidence at pages 1839-1844 of the Record and in its Brief before this Court, the Respondent has profusely quoted from the proof of evidence.

We are back to the Proof of Evidence, which the lower Court failed and/or refused to scrutinize before it decided that it had jurisdiction to try the Appellant for stealing various sums of money belonging to a bank. Its attention was drawn to the decision in Nwosu’s Case, which dealt with a similar case involving another Bank Chief, who was removed by CBN, and later arraigned before the two Courts to answer to criminal charges.
The lower Court refused to abide by our decision in Nwosu’s Case on the ground that this Court held therein that since the alleged offences have their roots in capital market, the matter is within the purview of the Federal High Court. It assumed jurisdiction to try the Appellant because –

“In the present case, the offences alleged are stealing, receiving and obtaining money under false pretences. This is within the confines of the State High Court and I so hold”.

But as the Appellant rightly submitted, there is no Count in Nwosu’s case that mentions banking transaction, stocks and shares or even offences that have their roots in capital market. Nwosu was charged with stealing; this Court read the Proof of Evidence in that case, and held as follows –

A person can only be charged with stealing what is in existence— It is this, but important element of the offence of stealing, the existence of thing stolen that can determine whether the High Court of Lagos State possesses the jurisdiction over the action initiated before it or not. In doing his, it becomes apposite to juxtapose the said element of offence of stealing with the Report of the Investigators – – What is – – in existence is the fraudulent conversion of funds of the Banks as instructed, into shares. If the funds – – have turned into shares, which is an issue in the Capital market, can the High Court of Lagos State, therefore, invoke its jurisdiction on such matter, on a charge of stealing. – – Why will the Prosecution then resort to another charge of-stealing at the High Court of Lagos State when the existence of the thing said to be stolen is turned under the control of Capital issue?

Evidently, the lower Court based its decision to assume jurisdiction on what this Court discerned from the Proof of Evidence in Nwosu’s Case, which it blatantly refused to go through in this case for spurious reasons. The 26 Counts in the Information against Nwosu merely alleged stealing, and no more than that; this Court went through the Proof of Evidence, particularly the Report on the Investigators, and concluded as follows –

“No doubt the pith and substance of the complaint of stealing as evidenced by the conversion as instructed into shares, concerns a matter of capital issue, which is Item 12 on the Exclusive Legislative List By Section 251(1)(s) of the Constitution – – the Federal High Court, to the exclusion of any other Court is conferred with the jurisdiction to entertain matters over which only the National Assembly an legislate”.

The Lower Court did not look beyond the Counts against the Appellant, and as far as it was concerned, it had jurisdiction to try him for stealing, which is all that mattered, forgetting that the allegations must be proved. This court asked a key question in Okey Nwosu’s case, as follows –

“Will there be any evidence at the High Court of Lagos State, which is different from the evidence that will be before the Federal High Court on the existence of the thing stolen- –

In other words, the question the lower Court should have asked itself is – will the prosecution adduce any evidence that would be different from evidence before the Federal High Court as regards the money stolen? However, the lower Court did not look at the Proof of Evidence before it. If it had read it; it would have answered the question in the negative – No. The very fabric of the offence charged in this case – stealing is woven around banking transactions, which are linked to banking rules allegedly violated by the Appellant in the process of stealing the Bank’s money. The Appellant did not walk into the Bank and steal money from its vault; he is accused of using his position as MD/CEO to steal the said monies. For instance, see Exhibit 4 where the Prosecution’s key witness stated –

“Using his position as the Managing Director of the Bank [he] caused the said funds to be transferred for his use without adequate fund in his domiciliary account thereby granting himself an unauthorized credit facility”.

Grounds (vii) and (viii) of the Appellant’s Grounds of Objection states –

(vii) The main witnesses listed in the Proof of Evidence at the Federal High Court, Lagos in Charge No. FHC/L/CS/443C/09 are the same witnesses also listed in the Proof of Evidence before this Honorable Court.

(viii) The same counsel representing the Complainant in Charge at the Federal High Court are the counsels appearing before this Honourable Court, prosecuting the Applicant for the same offences as before the Federal High Court.

The 1st Respondent is not contesting these facts and has justified same by arguing that there is no law that forbids it from using the same set of lawyers and witnesses to prosecute separate and different offences against the Appellant at the Federal High Court and at the lower Court. There may not be any law that forbids the 1st Respondent from using the same set of witnesses to prosecute the Appellant in two separate Courts, but in the circumstances of this case, there is a lot riding on the said fact.

The Appellant was already standing trial at the Federal High Court before he was taken to the State High Court to face a Charge of stealing. In Nwosu’s Case, this Court went below the surface of the said Counts, and excavated the roots on which the allegation of stealing sprang from, only to find that there was nothing connecting it to the State High Court. We have a similar situation; the case before the lower Court is riddled with matters for which the Federal High Court has exclusive jurisdiction, and there is no way a charge of stealing can stand without evidence that can only be looked into and determined solely by the Federal High Court. The long and short of it is that the lower Court fell into serious error when it failed to abide by the decision of this Court in Okey Nwosu’s Case, and in clear terms, this issue must be resolved in favour of the Appellant.

As to the issue of abuse of process, the lower Court did not make any pronouncements thereon because it wrongfully held that the said processes were not produced even though they were exhibited before it. I have dealt with all that but it is trite that an appellate court cannot look into issues that were not thrashed out at the trial Court; and so it will be.
Before I round up, I must express my view, and how I see things. The same set of Prosecutors arraigned the Appellant before two Courts – the Federal High Court and Lagos State High Court; one after the other. He is being prosecuted for offences allegedly committed when he was MD/CEO of Intercontinental Bank Plc., and this is after he was removed. The Prosecutors had the Proof of Evidence, and had the choice to make; try the Appellant for stealing at the State High Court and stay there or try him for bank-related offences at the Federal High Court and stay there.
It is most unfair, and smacks of injustice, to drag the Appellant from the Federal High Court to the State High Court while the Charge is pending. But that is my own view; I look forward to what the Supreme Court says.
In the final analysis, the appeal succeeds, and is therefore allowed. The decision of the lower Court in its Ruling dated 2/5/14 is set aside, and in its place, I hereby strike out the Information dated 4/5/11 preferred against the Appellant at the lower Court in Charge No. ID/148C/2011.

SAMUEL CHUKUDUMEBI OSEJI, J.C.A.: I have been afforded the opportunity of reading before now, the draft copy of the lead judgment just delivered by my learned brother Amina Adamu Augie JCA.
My lord has in the usual manner dealt exhaustively with all the issues in contention and I whole heartedly agree with the reasoning’s and conclusion reached therein.
I will however add for purposes of emphasis that a clear distinction must be drawn between a summary trial and a trial on information. While in a summary trial procedure the initial facts available to an accused person are virtually limited to the charge sheet, in a trial on information, the following documents are made available by the prosecution from the onset of the trial:
a. The charge containing the statement and the particulars of the offence.
b. The statements of the prosecution witnesses.
c. The statements of the accused persons.
d. List of exhibits, and.
e. All other relevant documents that the prosecution intends to rely on at the trial.
See. UWAZURIKE v. A-G FEDERATION (2013) LPELR-20392(SC) and FRN v. IBORI (2014) LPELR-23214(CA).

The whole gamut of documents that accompanies the charge or information is what is referred to as proof of evidence.
Authorities also abound, that in a trial on information as in the instant case, the court can peruse the proof of evidence in deciding whether it has jurisdiction to hear the case or whether a prima facie case is made out against the accused person. See ABACHA v. STATE (2002) 5 NWLR (Pt. 767) 638; EZE v. F.R.N. (1987) 2 SCNJ 76; UWAZURIKE v. A-G FEDERATION (SUPRA) AJIDAGBA v. IGP (1958) SCNLR 60; OKORO v. STATE (1988) 2 SC (PIII) 83: OKOLI v. STATE (1992) 6 NWLR (Pt. 247) 381 and JAPHET v. THE STATE (2010) LPELR-4471(CA).
In HEMBE v. F.R.N. (2014) LPELR-22705(CA) this court relying in the Supreme Court case of JIMOH ATANDA v. A-G WESTERN NIGERIA (1965) NMLR 225 held that:
“When judges examine the proofs of evidence and are unable to detect the commission of a crime the state should not be granted leave to prosecute but the application ought to be refused. The courts should not become avenues for prosecuting the innocent instead of prosecuting criminals.”
See also AGBOOLA v. F.R.N. (2014) LPELR-22932(CA). It is my firm view that the above principle of law applies with the sane force where the jurisdiction of the court to entertain the case is called to question. The learned trial judge had in his ruling which is the subject of this appeal held thus:
“Counsel made on analysis and evaluation of some documentary evidence Proposed to be tendered by the prosecuting. I find and I hold that this is Premature and cannot be looked into at this stage of the proceedings. It is the law that matters for substantial hearing cannot be delivered at the introductory stage.”
The above reasoning of the learned trial judge will hold sway in a summary trial procedure but in the instant case the trial is on information where the law requires the filing of proof of evidence which by decided cases should of necessity be perused for the purpose of determining whether the court has jurisdiction or that a prima facie case has been made out against the accused person. See EZE v. F.R.N. (SUPRA). The learned trial judge therefore fell into grievous error by refusing to look at the proof of evidence on the ground that it was premature at that stage to do so.
For this and the fuller reason detailed in the lead judgment, I hold that this appeal is meritorious and it is accordingly allowed.
The ruling of the lower court delivered on 2-5-2014 is hereby set aside and the information preferred against the appellant in charge NO. ID/148C/2011 is hereby struck out.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read the draft judgment just delivered by my brother Hon. Justice Amina Adamu Augie, JCA and I agree with the lucid reasoning and conclusions and wish to add some words of mine to it.
The action here is a criminal one brought to determine which court has jurisdiction to entertain the information of 4/5/11. It was initially filed as charge No. ID/148C/2011 at the Lagos State High Court under the Administration of Criminal justice law 2011. It contains 26 counts, alleging in 18 of them offences of conspiracy and stealing of various sums of monies belonging to International Bank Plc against the Appellant.

The grounds of the application which challenges jurisdiction of the court are:-
(1) Complaint is the Federal Republic of Nigeria
(2) 18 counts are on allegation of conspiracy, stealing of monies belonging to the defunct bank.
(3) Subject matter relates to banking operations, and Control and operation of the capital issues and company related matters under Companies & Allied Matters Act – under Section 251(1) (d) & (e) (S) (3) of 1999 Constitution and items No. 6, 12, and 32 of Exclusive legislative list contained in the 2nd Schedule to 1999 Constitution.
(4) Same complaint in 2009 was initiated at Federal High Court (which are still pending) and 2 appeals have emerged therefrom.
(5) Main witness as in both suits are the same as listed in proof of Evidence before the High Court.
(6) Same counsel represents complaint in both courts
(7) The information before the Lagos court constitutes an abuse of court process.

It was supported by 31, paragraph affidavit and 4 annextures. Respondent opposed same and in 5 paragraph counter affidavit in opposing the Appellant filed 11 paragraphs further Affidavit with a copy of a charge filed at the Federal High Court between F.R.N. v. OKEY NWOSU & ORS as Exhibit 5.

The trial court – refused the application and held that all the counts had nothing to do with the banking transaction, stocks and shares so as to attract jurisdiction of the Federal High Court and held further that the allegation in the suit at hand are stealing receiving and obtaining money under false pretence and that this is within the confines of the State High Court.
It is against this decision that this appeal was filed.

The salient issue in the analysis of this appeal, is the need to emphasis the importance of considering in details the proof of evidence which is a mandatory requirement of an information filed under the Administration of Criminal Justices law (AJCL) of Lagos State.
In Section 251(1):-
“Where an information is exhibited in the High Court under the processes of this law it shall set out:-
a.
b.
c.
d.
e.
f. – proof evidence
2 – The forms set out to this are forms conforming to that as nearly as shall be, shall be used in the cases to which they are applicable ……and the particulars.”

Therefore, the jurisdiction of a court to hear a case depends on the cause of action as shown in the information filed and proof of evidence and not on the appellant’s conception of what the case is or ought to be as set out. See CHIEF LERE ADEBAYO v. STATE (2012) LPELR-9464 (CA); OMNIA NIG LTD v. DYKE (2007) 15 NWLR (Pt. 1058) SC 576 AT 598-599.
The proof of evidence being a compulsory requirement of the law. It must be complied with. See GEORGE v. DOMINION FLOUR MILLS (1963) ANLR 1; BAMAYI v. AGF (2001) 12 NWLR (Pt. 727) 468.
It therefore constitutes a condition precedent to filing an information under the AJCL. It is a determinant of jurisdiction. See ABACHA v. State (2002) 11 NWLR (Pt. 779) 437; IKOMI v. STATE (1986) 3 NWLR (Pt. 28) 340.
In this case, the proof amplifies the statement of offence.
The proof of evidence certainly will include the report of the investigators assigned to investigate the petition and what they discerned which formed the basis of the charges preferred against the Appellant. See NWOSU v. FRN (supra).
In this case the root of the various counts must be dug into with a clean digger and a shovel to unravel the base when all is poured out for all to see –
The proof of Evidence as in the “statement of Abdulraheem Yinka Jimoh” in Exh. 4 in bullet form-;

– “Process of approving placement limit in I.C.M.L. by Appellant from N2b to N5.5b, enabled the bank’s treasury to be able to place more funds at the disposal of I.C.M.L. for lending to Regal Investment Ltd, was itself improper.

No approval was sought from the board on utilization of deposit placement of N2b with the bank.

– At time of request and agreement with Regal Investment Co. Ltd., I.C.M.L. did not have the financial capacity to support the placement being an institution registered for trading in capital Markets neither was the request considered or approved by its board (I.C.M.L.).
– Procedures adopted in accounting treatment of the deposit of the bureau de charge operators -is highly irregular and improper.
– Using position as Managing Director of the bank to cause funds to be transferred for his use without adequate funds in his domiciliary account thereby granting himself an unauthorized credit facility.
– Instruction of financial controller to G.E. Domestics operations to debit the Bank’s Pre payment General lodgers Account with 3,350,000,000.00 for distribution – Intercontinental homes Ltd. N350,000,000.00 Intercontinental Securities Ltd. N500,000,000 Intercontinental Capital Markets Ltd – N2,500,000,000.
The N2,500,000,000 facility in reference was collaterized with 123, 511, 868 units of Intercontinental Bank Plc shares belonging to Mr. Peter Akingbola, Atonia T. O. Akingbola, & Dr. Erastus. Akingbola – who is both Chief Executive Officer (CEO) & Chairman of Tropics Finance Company Ltd. The personal guarantee of Dr. Erastus B. O. Akingbola was used to secure the facility.
Transfers in aggregate of N8,684,500,000 were made on 11 dates during the period between 13th May 2009 – 30th June 2009. From the repayment account and all the money were discovered to be used for the benefit of companies related to Dr. Akingbola as detailed below.” (underling mine).
The documents in the proof of Evidence as highlighted in the lead judgment, all point only to one fact; that it is not a charge for stealing perse, under Section 383-390 of Criminal code., it is a actually a charge against the accused wherever he is affiliated with the companies used to perpetrate acts of diversion, conversion of shares, transfer of funds in domiciliary accounts, non approval of banking policy transactions, which appeared to have benefited the accused indirectly.
It is the mode and manner of allegedly moving funds from the said bank that determines the specific court’s jurisdiction not what the funds were used for, or how it was utilized.
Therefore many “vehicles” were utilized and an apt tracing from the proof of evidence (investigator) will involve lifting the veil of the Companies, looking into ownership structures, the extent of involvement, whether individual liability as against corporate liability – the share holding structure and capital issues from the securities Exchange Control, different banking instruments, diverse banking offences under the BOFI Act and CBN Act – no doubt will involve an area not within the High court’s jurisdiction.
It involves control of capital issues in the Exclusive legislative list and these offences may only be properly prosecuted at the Federal High Court – by virtue of section 251(1) E, & D of the 1999 Constitution (as amended).
See HON. MINISTER FOR JUSTICE & A-G FEDERATION v. HON A-G FEDERATION LAGOS STATE (2013) LPELR-20974(SC).
This certainly has gone beyond the situation envisaged in N.D.I.C. v. OKEM ENT. (2004) 18 NSCQR 42. Control of Capital issues is listed No 12 on exclusive list and Section 251(1) of Constitution and Section 7 (2) of the Federal High Court Act (2004) Cap F.12 the court is vested with jurisdiction over connected and ancillary matters.
These facts do not support the charge of stealing simpliciter but a much more complex multifaceted banking, financial issues interwoven with capital and companies & allied matters law which the lower court cannot deal with; it will be leaving its comfort zone of jurisdiction and swimming in unknown waters.
See GAFAR v. THE GOVERNMENT OF KWARA STATE & ORS (2007) LPELR-8073(SC) Where the Supreme Court held that the Federal High Court cannot determine the appellants claim without necessarily wading into the indictment of the appellant in the report of Inquiry and the White paper issued there on.
In my view, I agree that the proof of evidence was sufficient guide to the court to arrive at a contrary decision that Nwosu’s case was a proper light to follow.
For this and other reason in the lead judgment, I too allow the appeal and set aside the ruling dated 2/5/14, I also strike out the information dated 4/5/11 preferred against the Appellant at the lower court in charge ID/148C/2011.

Appearances

Chief Wole Olanipekun (S.A.N.) with Mr. M. I. Igbokwe (S.A.N.),
Olabode Olanipekun, Esq.,
Dr. C. O. Ukattah, Esq. S. Eze, Esq.,
Bolarinwa Awujola, Esq., and Oyemade Ogunlowo, Esq. – AppellantFor Appellant

AND

E. C. Ukala (S.A.N.) with Chief Godwin Obla (S.A.N.),
E. C. Okpe, Esq., Miss O. J. Iheko and Damilola Amore, Esq. – 1st Respondent

Prof. Taiwo Osipitan (S.A.N.) with Mrs. Olayemi Badewole,
Mrs. Oluwatosin Daudu and Mrs. Foluke Toye-Salami – 2nd RespondentFor Respondent