EL-YADI MOTORS LIMITED v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/13869(CA)
In The Court of Appeal of Nigeria
On Monday, the 25th day of March, 2019
CA/YL/81CN/18
RATIO
CONSPIRACY: DEFINITION AND NATURE
Conspiracy has been defined as an agreement between two or more persons to do an unlawful act. See: KAYODE VS. STATE (2016) LPELR ? 40028 (SC) P. 32, paragraphs A ? B in STATE VS. SALAMI (2011) LPELR 8252 (SC) PP. 38 -39, Paragraphs E?A, his Lordship, Muhammad, JSC defined conspiracy thus:
?The general definition assigned to the word ?Conspiracy?, in the realm of criminal Law, is that it is an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful/illegal act, coupled with an intent to achieve the agreement?s objective. Burton?s Legal Thesaurus, 4th edition, in the Penal Code (PC) of the Northern Region of Nigeria (1963) under which the respondent was charged, Section 96 thereof defines ?conspiracy? as follows:
(1) When two or more persons agree to do or cause to be done ? a) An illegal act; or b) An act which is not illegal by illegal means?.
See also POSU & ANOR VS. STATE (2010) LPELR ? 48 63 (CA) P. 34, Paragraphs. E?G, SHERIFF OGUNLEYE VS. THE STATE (2016) LPELR ? 40090 (CA) P.10, Paragraph E.
Section 8 (a) of the Act under which the Appellant was charged provides as follows:
8. ?A person who ?
(a) Conspires with, aids, abets or counsels any other person to commit an offence;?
While Section 1 (1) (b) provides as follows:
(1) ?Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud.
(a) . . . . . . .
(b) induces any other person, in Nigeria or in any other country, to deliver to any person. PER CHIDI NWAOMA UWA, J.C.A.
JURISDICTION: FEDERAL HIGH COURT: WHETHER IT HAS JURISDICTION AS REGARDS SIMPLE CONTRACTS
In ONUORAH VS. KADUNA REFINING & PETROCHEMICAL CO. LTD (2005) LPELR ? 2707 (SC) P. 11, Paragraphs. E ? G, his Lordship Akintan, JSC on whether the jurisdiction of the Federal High Court pertains to cases of simple contract held thus:
Since disputes founded on contracts are not among those included in the additional jurisdiction conferred on the Federal High Court, that Court therefore, had no jurisdiction to entertain the Appellant?s claim. The lower Court therefore, had no jurisdiction to entertain the appellant claim. The lower Court therefore, acted rightly in its decision that the Federal High Court lacked jurisdiction to entertain the claim. See: SEVEN-UP BOTTLING CO. LTD VS. ABIOLA & SONS BOTTLING CO. LTD (2001) 13 NWLR (PT. 730) 469; and TRADE BANK PLC VS. BENILUX (NIG.) LTD (2003) 9 NWLR (PT 825) 416 at 430 & 431.”
The jurisdiction of the Federal High Court as conferred on it by Section 251 of the Constitution (as amended) particularly Subsection (3) as it pertains to its jurisdiction in criminal cases and matters does not cover simple contracts or wrongful diversion of government money as was alleged and decided by the trial Court. The facts that gave rise to the charge at the trial Court were founded on simple contract which the trial Court had no jurisdiction to entertain. In the Respondent?s submissions under issue one, in paragraph 3.17 of the Respondent?s Brief of Argument, the Learned Legal officer submitted that the subject matter of the charge that gave rise to this appeal is a ?special specie of contract? duly codified by law. Also, ?a special specie and unique class of contract known to law as procurement process?. Throughout the argument of the Learned Legal Officer under this issue, it was alleged that the issue is that the laid down procedure in the Public Procurement Act/Law was not applied in the award of the contract to the Appellant and her Managing Director. The Learned Counsel then dwelt on the Provisions of the Adamawa State Public Procurement Law, 2013 which was alleged not to have been followed by the Adamawa State Government in the award of the contract to the Appellant as a contractor. PER CHIDI NWAOMA UWA, J.C.A.
THE ATTITUDE OF THE COURTS TOWARDS ACADEMIC QUESTIONS
Courts do not waste their precious judicial time determining academic questions. Recently, the Apex Court reiterated the attitude of the Courts to academic issues in the case of ECOBANK VS. HONEYWELL FLOUR MILL PLC. (2018) ? LPELR-45124(SC) P.47, Paragraphs A-F, his Lordship Okoro, JSC held thus: Courts are not set up to engage its precious judicial time in academic exercise. In Salik V. Idris & Ors (2014)15 NWLR (Pt. 1429) 361 (2014) LPELR-22909 9SC) at Paragraphs 39-40, Paragraphs F-C, this Court made it clear:- ?when a Judge restrains himself from deciding issues in a case or the whole case because his effort would amount to an academic exercise, all that his Lordship is saying is that if he decides the suit it would end with hollow victory. A victory with no value whatsoever. A victory that cannot be enforced. That explains why in a plethora of cases it has been said that Court should not engage in academic exercise, rather, Court should restrict judicial time to determine live issues. ?See also Oyeneye Vs. Odugbesan (1972) 4 SC 244; Adelaja & Ors Vs. Alade & Ors (1999) 6 NWLR (Pt.608) 544; Bhojwani Vs. Bhojwani (1996) 6 NWLR (Pt.457) 663; Bamgboye Vs. Unilorin (1999) 10 NWLR (Pt. 622) 290. PER CHIDI NWAOMA UWA, J.C.A.
Before Their Lordships
CHIDI NWAOMA UWAJustice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYIJustice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYEROJustice of The Court of Appeal of Nigeria
Between
EL-YADI MOTORS LIMITED Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The Appellant as 2nd Defendant (a duly incorporated company) at the Federal High Court, Yola, Adamawa State was arraigned by the Economic and Financial Crimes Commission (EFCC) with the 1st Defendant (Mrs. Okeke Nene Christie) as the Managing Director, on a two Count Charge of Conspiracy to obtain money by false pretence from the government of Adamawa State, contrary to Section 8 (a) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006 punishable under Section 1 (3) of the same Act and with intent to defraud, obtained the sum of N132,500,000.00 from the Government of Adamawa State under the false pretence that the said sum was to be utilized for the procurement of twenty five (25) units of operational, Toyota Corolla (1.8 litres) 2015 model for the Commissioners of Adamawa State in which only seventeen units (17) out of twenty five (25) were delivered and the 1st Defendant diverted the sum of N36,050,000.00 for the remaining unsupplied (8) units for her personal benefit, thereby committed an offence contrary to the provisions of Section 1 (1) (b) of the Advance Fee Fraud and Fraud Related Offences Act, 2006 punishable under Section 1 (3) of the same Act.
In the lower Court?s judgment delivered on 3rd May, 2018, it was held that the prosecution failed to establish her case against the Defendants and it was, ordered that the assets of the Appellant be liquidated and forfeited to the Adamawa State Government. It is against the said order that the Appellant has appealed to this Court.
The background facts on the part of the Appellant are that the 1st Defendant, the Managing Director of the Appellant, that deals with auto-mobiles, discharged contracts for State Governments, corporate organizations and individuals including the Government of Adamawa State to the knowledge of the then Governor of Adamawa State, His Excellency, Barrister Bala James Ngillari (hereafter referred to as the Governor). The Governor on assumption of office negotiated with the 1st Defendant for the purchase of 25 units of cars for his commissioners and indicated interest in Toyota Corolla (1.8 litres) 2015 model to which he directed the 1st Defendant to conclude the negotiations with his Chief of Staff.
The 1st Defendant thereafter sent the Appellant?s Proforma Invoice (which at the trial was tendered in evidence as Exhibit DW1A) to the chief of staff. The invoice was for the sum of N6, 772,500.00 exclusive of tax as the price of the car per unit if multiplied by 25, amounted to N169,300, 000.00. The Government raised a memo in respect of the transaction through the office of the secretary to the State Government wherein he entered the sum of N6,712,500.00 as the unit price for each of the cars, which amounted to the sum of N167,812,500.00 for the 25 units which was approved by the Governor. Thereafter a deposit of N132,500,000.00 was paid into the account of the Appellant and Mrs. Okeke Nene Christie (1st Defendant) supplied 17 units of the vehicles and decided to source the remaining 8 units outside the country.
The 1st Defendant thereafter travelled to the United States of America and secured 4 units of the cars, while working of the shipment, returned to Nigeria and was arrested by the operatives of Economic and Financial Crimes Commission (EFCC) where she was detained and her travel documents were withheld despite the 1st Defendants release on bail pending trial. The 1st Defendant was unable to travel out of the country and could not process the importation of the vehicles from the United States of America.
The 1st Defendant was subsequently arraigned with the Appellant by the EFCC for the offences of conspiracy and obtaining by false pretence with intent to defraud.
The prosecution called 10 witnesses and tendered 37 Exhibits and closed their case while the 1st Defendant for herself and on behalf of the Appellant testified and tendered one Exhibit, Exhibit DW1A and closed the case for the defence. The trial Court in its judgment held that the prosecution did not prove the alleged offences for which the Defendants were charged, ordered the liquidation of the Appellant and the forfeiture of its assets to the Government of Adamawa State.
The Appellant being dissatisfied with the judgment and the order for liquidation and forfeiture of its assets to the Adamawa State Government after holding that the prosecution has failed to prove the allegation against it, appealed to this Court.
The following issues were raised for the determination of the appeal thus:
1. ?WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE ASSUMED JURISDICTION TO ENTERTAIN AND INDEED DETERMINE CHARGE NO. FHC/YL/107C/2015 (Distilled from ground 2 of the Notice of Appeal).
2. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE ORDERED THE LIQUIDATION AND FORFEITURE OF APPELLANT?S ASSETS TO THE GOVERNMENT OF ADAMAWA STATE AFTER HOLDING THAT THE PROSECUTION HAS NOT PROVED THE INGREDIENT OF THE OFFENCES FOR WHICH THE APPELLANT AND MRS. OKEKE NENE CHRISTIE WERE CHARGED. (Distilled from ground 1 of the Notice of Appeal).
3. WHETHER THE FAILURE OF THE LEARNED TRIAL JUDGE TO PRONOUNCE ON THE FIRST ISSUE SUBMITTED BY THE APPELLANT?S COUNSEL IN HER FINAL WRITTEN ADDRESS HAS BREACHED HER FUNDAMENTAL RIGHT TO FAIR HEARING (Distilled from ground 3 of the Notice of Appeal).
4. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE HELD THAT THERE WAS NO CONTRACT BETWEEN THE APPELLANT AND ADAMAWA STATE GOVERNMENT YET HELD THE APPELLANT AND MRS. OKEKE NENE CHRISTIE LIABLE FOR ?WRONGFUL DIVERSION OF GOVERNMENT MONEY.? (distilled from the ground 4 of the Notice of Appeal).
The Respondent on her part adopted the issues as raised by the Appellant.
In arguing the appeal, the Learned Counsel to Appellant G. C. Adikwu Esq., adopted and relied on his Amended Brief of Argument filed on 25/10/2018 and his Reply Brief filed on 8/10/2018 but deemed filed and served on 12/11/2018 in urging us to allow the appeal and set aside the decision of the lower Court for the liquidation and forfeiture of the Appellant?s assets to the government of Adamawa State after holding that the prosecution has not proved the ingredients of the offences for which the Appellant and the Mrs. Okeke Nene Christie were charged. In arguing his issue one, it was submitted that the trial Court lacked the jurisdiction to have heard and determined the charge filed on 7th January, 2016 which presupposes that the charge was registered before the purported filing. It was argued that the charge was registered in 2015 but dated 6/1/2016 and filed on 7/1/2016 which inhibits the trial Court?s jurisdiction to have tried the mat
