FEDERAL REPUBLIC OF NIGERIA v. NZE CHIDI DURU (2019)

FEDERAL REPUBLIC OF NIGERIA v. NZE CHIDI DURU

(2019)LCN/13249(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 14th day of May, 2019

RATIO

RESPONDENT’S NOTICE: WHAT IS THE ESSENCE OF A RESPONDENT’S NOTICE

In doing so, a question that must be answered is: What is the essence of a Respondent’s Notice?

In the case of UBA VS. CAC & ORS (2016) LPELR 40569, it was held thus:

A Respondent who desires to contend on the appeal that the decision of the Court below should be affirmed on grounds, rather than those relied upon by the Court must give notice to that effect specifying the grounds of that contention… in other words, the Respondent’s Notice postulates the correctness of the judgment, notwithstanding the grounds of the appeal by the Appellant to have it set aside.”

Also, in the case of RE: NDIC VS. ROSABOL (NIG) LTD & ORS (2017) LPELR -41925, it was held that:

Now the purpose of a Respondent’s Notice is that the judgment or decision or ruling appealed against should be affirmed on grounds other than those relied upon by the Court below in reaching its decision appealed against. However, it is not a carte blank or open cheque on which a Respondent could raise every contention as he so wishes since in law the grounds so relied upon by the Respondent must be apparent on the face of the printed record of appeal, having regards to the facts of the case, the applicable law and the judgment appealed against.”

Finally, in the Supreme Court case of GWEDE VS. INEC (2015) ALL FWLR PART 767 PAGE 615 @ PAGE 644, it was held per Onnoghen JSC that:

“The purpose/subject/intention of a Respondents Notice is that the judgment of the lower Court be confirmed on grounds other than those relied upon by that Court in reaching the decision on appeal. The grounds relied upon in the Respondents Notice must he apparent on the record having regards to the facts of the case, the law applicable thereto and the judgment on appeal.”PER MOHAMMED BABA IDRIS , J.C.A.

WHETHER A FRESH ISSUE OF JURISDICTION CAN BE RAISED IN THE RESPONDENT’S NOTICE

The fresh issue of territorial jurisdiction raised in the Respondent’s Notice is very strange to me. I would think that the Respondent counsel would have instead raised the fresh issue of territorial jurisdiction simply through a Notice of preliminary objection. This is because in a Respondent’s Notice, the Respondent believes the judgment is correct but there is evidence on record which can sustain the judgment on grounds other than those relied upon by the Court.PER MOHAMMED BABA IDRIS , J.C.A.

JURISDICTION: IMPORTANCE

However, assuming I am wrong in dismissing the Respondent’s Notice for being incompetent, the issue of jurisdiction raised therein is very fundamental in every proceeding. The issue of jurisdiction cannot be over emphasized. In the Supreme Court case of ALIOKE VS. OYE (2018) 18 NWLR (PT.1651) PAGE 247 AT 260 PARAS B-C, it was held per Bage, JSC that

“it is settled law that jurisdiction as a threshold or fundamental issue can be raised anytime during the trial of a suit up to finality… In that wise, it can be raised at any stage of a case both at trial and on appeal by any of the parties, and it can even be raised orally. The Court can also raise it by itself suo motu where the question involves a substantial point of law, substantive and procedural and no further evidence needs be adduced which would affect the decision.”PER MOHAMMED BABA IDRIS , J.C.A.

CRIMINAL LAW AND PROCEDURE: VENUE OF CRIMINAL TRIALS

Section 93 (1) of the Administration of Criminal Justice Act 2015 provides for the venue of criminal trials. It provides thus:

(1) An offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction:

A. The offence was wholly or in part committed, or some act forming part of the offence was done;

B. The consequence of the offence as ensued;

C. An offence was committed by reference to which the offence is denied;

D. A person against whom, or property in respect of which, the offence was committed is found, having been transported there by the suspect or by a person knowing of the offence.

(2) A criminal charge shall be filed and tried in the division where the alleged offence was committed unless it can be shown that it is convenient to do otherwise for security reasons.

From the above cited provision, it is clear that the issue of territorial jurisdiction in our criminal jurisprudence is no longer narrow. The ACJA 2015 has made it broad to accommodate more than one territory.

By virtue of this section, an offence shall be inquired into and tried by a Court within the local limits of whose jurisdiction the offence was wholly or in part committed or some act forming part of the offence was done. An offence shall also be inquired into and tried by a Court within the local limits of whose jurisdiction the consequence of the offence has ensued or by Court within the local limits of whose jurisdiction an offence was committed by reference to which the offence is denied.

An offence shall also be inquired into and tried by a Court within the local limits of whose jurisdiction a person against whom, or property in respect of which, the offence was committed is found, having been transported there by the suspect or by a person knowing of the offence.PER MOHAMMED BABA IDRIS , J.C.A.

ABUSE OF COURT PROCESSES: NATURE

Abuse of Court process is a term generally applied to a proceeding which is wanting in bonafide and is frivolous, vexatious or oppressive. Abuse of process can also mean abuse of legal procedure or improper use of legal process. An abuse of process always involves some bias, malice, some deliberateness, some desire to misuse or pervert the system. See AFRICAN REINSURANCE CORPORATION VS. JDP CONSTRUCTION NIGERIA LTD (2003) LPELR-215 (SC); AMAEFULE VS. STATE (1988) 2 NWLR (PT. 75) PAGE 156.

Also, an abuse of process always involves some desire to misuse or pervert the system. See TSA INDUSTRIES LTD VS. F.B.N. PLC (2012) 14 NWLR (PT. 1320) PAGE 326.PER MOHAMMED BABA IDRIS , J.C.A.

PROOF OF EVIDENCE IS NOT THE SAME AS STATEMENT OF WITNESSES

In the case of FRN VS. WABARA & ORS (2013) LPELR- 20083, the Supreme Court explained that:

The proof of evidence are not the same as the statements of the witnesses the Appellant would call at the trial. Proof of evidence are summaries of the statements of those witnesses to be called at the trial by the Appellant. It is for that reason that the Rules require an affirmation from the Applicant that the evidence against the Respondents as summarized in the proof of evidence will be the evidence against the Respondents in respect of whose trial the Court is urged to grant leave to prefer a charge. Even at the trial, the Respondents are only entitled access to the statements of the prosecutions witnesses on the fulfilment of certain conditions.”PER MOHAMMED BABA IDRIS , J.C.A.

PROOF OF EVIDENCE: MEANING

In the case of PIUS VS. THE STATE (2012) LPELR 9304, it was held that

“the phrase ‘proof of evidence” means exactly what it says. Proofs of evidence are not by themselves pieces of judicial evidence. In a judicial trial, proofs of evidence have been described as “a compilation’ by the prosecution “of the totality of the statements of the complainant and his witnesses (if any); and of other persons who have volunteered statements to the police to file information against accused persons.”

In the case of IBEKWE VS. FEDERAL REPUBLIC OF NIGERIA (2004) ALL FWLR (PT. 213) PAGE 1780, it was held that:

“Proof of evidence is like a synopsis and summary of the evidence to be adduced by the prosecution for the proof of the offences charged in the information. Its status is or can be likened to pleadings in a civil case which do not constitute evidence but are merely aimed at giving notice to the other party of the evidence to be adduced in order to prepare his defence. Thus it has no any evidential value.”PER MOHAMMED BABA IDRIS , J.C.A.

MOHAMMED BABA IDRIS , J.C.A. (Delivering the Leading Judgment): The Respondent herein was arraigned at the High Court of the Federal Capital Territory, Abuja Judicial Division, on a four-count charge of criminal breach of trust and forgery contrary to Sections 315, 364 and 366 of the Penal Code Cap. 532 Laws of the Federation of Nigeria (Abuja) 1990.

The facts of the case leading to this appeal are to the effect that sometime in September 2011, the Economic and Financial Crimes Commission who is the Appellant received a petition dated 16th August 2011 from some shareholders of First Guarantee Pension Limited.

The petition complained of a miscellany of allegations of wrong doings carried out by the Respondent who was the Vice Chairman of First Guarantee Pensions Limited and others. The petitioners also attached a report referred to as “Target Examination Report” carried out by the National Pension Commission to the petition. In the said report, the Respondent and other named persons were said to have been involved with some fraud and misappropriation of the funds of the company.

Upon receipt of the petition, the Appellant conducted an independent investigation particularly on some of the allegations contained in the petition bordering on the commission of economic and financial crimes like criminal breach of trust/misappropriation of the sum of N16.12 million and forgery.

Upon conclusion of investigation, the Appellant filed an Information against the Respondent and another on allegations of conspiracy, stealing, forgery before the High Court of Lagos State. However, the Respondent was never arraigned before the High Court of Lagos State until the case was withdrawn by the Appellant and a fresh charge filed against the Respondent in the High Court of the Federal Capital Territory Abuja.

The Appellant preferred a four (4) counts charge against the Respondent at the High Court of the Federal Capital Territory, Abuja dated the 12th of January 2017 and filed on the 16th January 2017, with Charge No: FCT/HC/CR/75C/2017 bordering on allegations of the offences of criminal breach of trust and forgery.

The Respondent was arraigned on the 7th of February, 2017 on the four (4) counts charge to which he pleaded not guilty to all four (4) counts. However, the Respondent filed a notice of preliminary objection, praying the lower Court to decline the exercise of its adjudicatory power in respect of the charge on the grounds that the filing of the charge was an abuse of Court process as there were valid and subsisting orders of Courts nullifying the Target Examination Report and restraining the Appellant from initiating any action against the Respondent for the time being. The Target Examination Report was believed to be the basis upon which the charges were framed, and thus, the lower Court was urged to quash the charge and discharge the Respondent.

In reaction to the Respondent’s Notice of Preliminary Objection, the Appellant filed a counter affidavit accompanied by a written address.

After the hearing of submission of counsel in respect of the Notice of Preliminary objection, the lower Court upheld the Respondent’s preliminary objection and consequently quashed the charge and discharged the Respondent on the grounds that the charge was predicated on the Target Examination Report which had been nullified by the judgment of the Federal High Court in Suit No: FHC/ABJ/CS/709/2011 and that the charge was filed as an abuse of Court process in defiance of the Order of G. O. Kolawole 3, in Suit No: FHC/ABJ/CS/061/13 which restrained the Appellant from further prosecuting the respondent based on the nullified Target Examination Report.

Unhappy with the judgment of the trial Court, the Appellant filed a Notice of appeal dated 23/5/2017 and filed on the 25/5/17 appealing against the decision of the High Court of the Federal Capital Territory Maitama delivered on the 25th Day of Apri1, 2017 by Honourable Justice Peter O. Affen.

From the five (5) grounds of appeal contained in the Notice of Appeal, four (4) issues were distilled by the Appellant for the determination of the appeal thus:

1. Whether the lower Court was right in quashing the charge preferred by the Appellant against the Respondent on the ground that the charge was initiated in abuse of Court process, (Distilled from to ground one),

2. Whether the lower Court was right in quashing the charge preferred against the Respondent on the ground that the charge was based on the Target Examination Report attached as proof of evidence and that there was no evidence of a different “report of investigation’,when in fact there were other bundles of documents attached as proof of evidence for use at the trial to prove the Appellant’s case against the Respondent. (Distilled from ground 2),

3. Whether the lower Court was justified in quashing the charge preferred against the Respondent on the basis of the ruling of the Federal High Court in SUIT NO: FHC/ABJ/C5/61/2013-NZE CHIDI DURU & 2 ORS V NIGERIA POLICE FORCE & 3 ORS purportedly restraining the EFCC from continuing with the prosecution of the Respondent. (Distilled from ground 3),

4. Whether the lower Court was right/correct in discharging the Respondent of the charges when no legal incident justifying the discharge of the accused had occurred, to warrant same.

The Learned counsel for the Appellant argued that the lower Court relied upon subsisting judgments/orders of the Federal High Court as well as the pendency of various suits and appeals revolving around the Target Examination Report of First Guarantee Pensions Limited to arrive at its conclusion that the charge was initiated in abuse of Court process. The Appellant’s counsel also argued that both civil and criminal cases can subsist or proceed simultaneously and cannot legally be a basis for the lower Court to have declined adjudication in the criminal charge before it.

Additionally, the learned Appellant’s counsel argued that the instant charge quashed by the lower Court is not based on the Target Examination Report. It is his argument that all the offences in the 4 counts charge do not form part of the finding of facts contained in the Target Examination Report. It was also argued that the Appellant conducted independent investigation on the allegations leading to the filing of the charges against the respondent, and the investigation raised a prima facie case warranting the filing of the charge that was unfortunately quashed by the lower Court.

The Appellant’s counsel submitted it was wrong for the trial Court to quash the charge preferred against the Respondent without taking evidence on the assumption that the charge is based on the Target Examination Report said to have been nullified by the Federal High Court in Suit No: FHC/ABJ/CS/709/11. It was also submitted that there were some documents and reports frontloaded as proof of evidence in the instant case apart from the so-called Target Examination Report which made it necessary for the lower Court to undertake a full and proper trial and not to truncate the criminal charge at a preliminary stage.

Learned counsel for the Appellant also submitted that in initiating the criminal proceedings against the Respondent, the Appellant strictly followed due process of law and never indulged in any abuse of Court process as there was and is still no legal impediment constraining the Appellant from instituting the criminal charge against the Respondent.

Additionally, learned Appellant’s counsel added that contrary to the ruling by the Court below that no evidence of a different “report of investigation” was produced before the Court, the law does not make it compulsory for law enforcement agency/police to frontload their investigation reports as proof of evidence. All that is required are summaries of the evidence they intend to rely on.

The Appellant’s counsel further submitted the lower Court fell into deep error and ought not to have quashed the instant charge as the Respondent did not establish any cogent fact warranting the quashing of the charge. Learned counsel for the Appellant also argued that the lower Court simply offered sanctuary to the Respondent and shielded him from prosecution by quashing the charge preferred against him.

The Appellant’s counsel additionally submitted that the Court below was wrong in discharging the respondent on the four (4) counts charge, as the respondent did not make a case to justify the lower Court discharging him. These authorities were relied on:

1. SMITH V SELWYN (1914 -1915) ALL ER REP 29

2. VERITAS INSURANCE CO. LTD V CITY TRUST INVESTMENTS LTD (1993) 3 NWLR (PT. 281) 239

3. EHINDERO V FRN (2014) 10 NWLR (PT. 1415) C.A. 281 AT P. 309 PARA A

4. A. G. LAGOS STATE V. A. G. FEDERATION (2014) 9 NWLR (PT. 1412) S. C. 217 AT 272 – 273 PARAS B – A

5. DANIEL V FRN (2014) 8 NWLR (PT. 1410) C. A. 570 AT 618 PARAS E – G

6. ADEBOWALE V STATE (2013) 16 NWLR (PT. 1379) C.A. 104 AT P. 127 PARAS F – G

7. ATTORNEY GENERAL OF ANAMBRA STATE V UBA (2005) 15 NWLR (PT. 947) 44 AT 67

8. FAWEHINMI V IGP (2002) 7 NWLR (PT. 767) 606 AT 671 – 672

9. EHINDERO V FRN (2014) 10 NWLR (PT. 1415) C. A. 281 AT 309 PARA D

10. FRN V IBORI (2014) 13 NWLR (PT.1423) C.A. 168 AT 215 PARAS F – G

11. F.H.A. V EMELIE (2013) 3 NWLR (PT. 1342) C.A. 478 AT P. 501 PARAS C – E.

12. JOHN HOLT NIG LTD V HOLTS AFRICAN WORKERS UNION OF NIGERIA & CAMEROON (1963) 1 ALL NLR 385 AT 389

13. IDEOZU V OCHOMA (2006) 4 NWLR (PT. 970) 364 AT 370

14. GOVERNOR OF IMO STATE V ANOSIKE (1987) 4 NWLR (PT. 66) 663

15. ANAEKWE V MASHASHA (2001) 12 NWLR (PT. 726) 70 AT 89

16. CHIEF OF AIR STAFF V IYEN (2005) 6 NWLR (PT. 922) S.C. 496 AT 542 PARAS F – G

17. FRN V NWOSU (2016) 17 NWLR (PT. 1541) SC 226 AT 305 – 306 PARAS H – G

18. NIGERAIN ARMY V AMINUN-KANO(2010) 5 NWLR (PT. 1118) S.C. 429 AT 461 PARAS E – F

STATUTORY AUTHORITIES

1. SECTION 36 (9) CFRN, 1999 (AS AMENDED)

2. SECTION 36 (10) CFRN, 1999 (AS AMENDED)

3. SECTIONS 238 AND 277 OF THE ADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015

The Respondent filed an Amended Respondent brief of argument deemed properly filed and served on the 12th of March, 2019. The Respondent raised two issues for determination:

1. Whether the High Court of the Federal Capital Territory has territorial jurisdiction to hear the charge in view of the fact that the evidence frontloaded by the Complainant revels that the entire facts relating to the charge occurred in Lagos State outside the territorial jurisdiction of the Court (Distilled from the Respondent’s Notice to vary the judgment of the lower Court and affirm on other grounds).

2. Whether the trial Court exercised his discretion judicially and judiciously in the circumstance of the case? (Distilled from all the Grounds of Appeal)

Regarding the first issue on whether the High Court of the Federal Capital Territory had territorial jurisdiction to hear the charge, it was argued by the Respondent’s counsel that the evidence frontloaded by the Appellant revealed that the entire facts relating to the charge occurred in Lagos State outside the territorial jurisdiction of the Court. It was also argued that it is trite law that it is the place where an offence is committed that a charge relating to the offence can be filed.

The Respondent’s counsel argued that from the petition which formed the premise upon which the investigation was initiated, to all bundle of evidence frontloaded by the Appellant in compliance with the Administration of Criminal Justice Act 2015, the offences alleged to have been committed by the Respondent can only be tried in Lagos State which is outside the territorial jurisdiction of the trial Court because First Guarantee Pension Limited has it’s registered address in Lagos.

Learned counsel to the Respondent also argued that the monies belonging to First Guarantee Pensions Limited which formed the basis of the charge in Count 1 and 2 were monies, belonging to First Guarantee Pensions Limited, and paid into the account of First Guarantee Pensions Limited operated in Lagos State and withdrawn pursuant to a resolution passed in Lagos State, outside the territorial jurisdiction of the High Court of the Federal Capital Territory.

The Respondent also buttressed the fact that there is nothing in the record to show that the alleged offences in count 3 and 4 were committed in the Federal Capital Territory Abuja.

Furthermore, the Respondent’s counsel submitted that the High Court of the Federal Capital does not have territorial jurisdiction to try the Respondent and that the Appellant does not have the leverage to pick and choose which Court to present their case as such amounted to forum shopping which is frowned at by our law. The Respondent’s Counsel also submitted that the Court will not close its eyes to the abuse of the judicial process.

On issue two, whether the trial Court exercised his discretion judicially and judiciously in the circumstance of the case the Respondent argued that with the introduction of the requirement of adding the proof of evidence to a charge based on the combined reading of Sections 376 (4), 379, and 380 of the Administration of Criminal Justice Act 2015, a party could contest the proprietary of his facing a charge filed against him if the evidence in the proof of evidence renders the trial an abuse of process.

The Respondent further argued that the essence of the provisions of Section 277 (4) of the Administration of Criminal Justice Act 2015, is that a Defendant who is served with a criminal charge has the right to raise any legal objection as to why he should not be made to undergo the whole trial.

The Respondent further submitted that a Court such as the lower Court has the powers upon invitation to review the proof of evidence to determine whether the objection is with merit or not.

Learned counsel for the respondent, submitted that all the investigation reports contained in the proof of evidence were directed towards giving a criminal link to the target examination report in disregard of the judgment of the Federal High Court in Suit No. FHC/CS/ABJ/709/2011 and the interlocutory injunction in Suit No. FHC/CS/61/2013.

Furthermore, the Respondent counsel argued that the documents, in pages 11 to 83 are the statements of the petitioners who signed the petition that is contained in page 6 of the Volume 1 of the Record which was made pursuant to the invitation made to him by the Appellant in the cause of investigating the content of the petition. In addition, the Respondent’s counsel argued that the other pages are correspondence between the National Pension Commission, Banks and Nigerian Deposit Insurance Commission all geared towards giving effect to the allegations contained in the Target Examination Report of First Guarantee Pensions Limited conducted by the National Pension Commission. Furthermore, learned counsel for the Respondent also submitted that the Court would find that it is the petition written by the shareholders of First Guarantee Pension Ltd that triggered the investigation, and that the charge was premised on the Target Examination Report of First Guarantee Pensions Limited. The target examination report had been declared a nullity in Suit No. FHC/CS/ABJ/709/2011.

Learned counsel for the Respondent also argued that there is nothing, in the proof of evidence that indicates that it was the Respondent that committed the offence of criminal breach of trust and the Target Examination did not put the blame on the Respondent, and there is no allegation that the Respondent was dishonest in his dealings as the loan was documented and repayment of the loan was effected before the charge was filed.

Furthermore, the Respondent’s counsel contended that there can be no breach of trust where the said property was accounted for and returned and there is nothing in the investigation report that says it was the Respondent that forged the signatures neither is there any other investigation report linking the Respondent to that crime.

The Respondent’s counsel also argued that the trial judge rightly held that the action was an abuse of Court process in that it was initiated in spite of valid and subsisting orders of Court nullifying the target examination report which is the fulcrum upon which the charge was premised as well as the fact that there is an injunction restraining the Appellant from prosecuting the Respondent pending the hearing and determination of Suit No. FHC/ABJ/CS/61/2013.

The Respondent’s counsel also submitted that the initiation of the charge was persecutory because the Appellant failed to honour the Honourable Attorney General of the Federation’s letters of 10th January, 2013 at pages 691 and 690 of Volume II of the Record.

The Respondent’s counsel also buttressed the fact, it is a rudimentary proposition of the law that where a criminal trial is not determined on the merit, the defendant is discharged and thus, the order of the trial judge discharging and acquitting the Respondent was valid. The Court was urged to dismiss the appeal. These authorities were relied on:

1. ABACHA V STATE (2002) 11 NWLR (PART 779) 437

2. AKINGBOLA V FRN & ANOR (2015) 10 NWLR PART 1468 CA 479

3. AKWULE V THE QUEEN (1963) ANLR 105

4. ALOGUNEBI V STATE (2018) LPELR – 43880 (CA)

5. CHIEF GANI FAWEHINMI V ATTORNEY GENERAL OF LAGOS STATE & ORS (NO.1) (1989) 3 NWLR (PT. 112) 707 AT 721 -722

6. DALHATU V TURAKI (2003) 15 NWLR (PT. 843) 310

7. EDE V THE STATE (1977)1 FHA (PT. 95) 115

8. EDET V THE STATE (1988) LPELR 1008 (SC)

9. EGBE V THE STATE (1980) 1 NCR (ALR) 341

10. EHINDERO V FRN (2014) 10 NWLR (PART 1415) CA 281

11. HON. KHAMISU AHMED MAILANTARKI V HON. YAYA BAYCHI TONGO & ORS (2017) LPELR -42467 (SC)

12. MADUKOLU V NKEMDILIM (1962) 2 SCNJ 341

13. NWANKWO V STATE (1983) 1 NCLR 366.

14. ONUOHA V STATE (1988) 3 (PART 83) SC 460

15. IKOMI V THE STATE (1986) 3 NWLR (PT. 28) 340, 356

16. UKET V. F.R.N. (2008) ALL FWLR (PT. 411) 923 AT PP. 937 938

FOREIGN CASES

1. MACFOY V. UAC (1961)3 ALL E.R. P. 1169.

2. SALOMON V. SALOMON AND CO (1897) AC 22

STATUTES AND SUBSIDIARY LEGISLATION

1. ADMINISTRATION OF CRIMINAL JUSTICE ACT 2015

The Appellant filed a Reply Brief dated the 15th of October, 2018. The Appellant raised a preliminary objection to the competence of the Respondent’s notice of intention to contend that the Ruling should be affirmed on grounds other than those relied on by the Court below and one issue for determination was formulated thus:

1. Whether the Respondent’s Notice contending that the ruling of the trial Court be affirmed on the ground that the High Court of the Federal Capital Territory lacked the territorial jurisdiction to try the Respondent (being a fresh issue that was never raised, canvassed or argued at the trial Court) is not incompetent and liable to be struck out.

It is the argument of Learned Appellant’s counsel that the notice of preliminary objection filed by the Respondent at the trial Court centered mainly on the fact that the entire charge was an abuse of Court process. The issue of territorial jurisdiction was never raised or canvassed at the lower Court. It was further argued that the purpose of a Respondent Notice was that a Respondent acknowledges that the lower Court came to the right conclusion but for the wrong reason, and therefore seeks an affirmation of the judgment or decision of the lower Court on grounds other than those relied upon by the lower Court. It is not an opportunity to raise fresh issues which had not come for consideration before the lower Court. Reference was made to TOUTON S. A. VS. G.C.D.N.Z. S.P.A. (2011) 4 NWLR PART 1236.

Appellant’s counsel argued about the uses, limitations and application of Respondent Notice, stating that the Respondent’s Notice was highly incompetent and liable to be struck out, and also urged the Court to strike out same for raising fresh issues not canvassed or argued at the Court below.

However, it was argued that assuming without conceding that the Respondent’s Notice raising fresh issue of the territorial jurisdiction of the trial Court is competent, the High Court of the Federal Capital Territory had the jurisdiction to hear the matter because from the proof of evidence, it was obvious that some of the elements of the 4 count charge occurred in Abuja. Reference was made to the statements of some witnesses that showed some parts of the offence alleged to be committed took place in Abuja. The Court was urged to hold that the High Court of the Federal Capital Territory had the territorial jurisdiction to hear the matter.

In respect to the 2nd issue for determination raised by the Respondent, it was argued that the Respondent strayed out of the issues captured in the Appellant’s Notice of Appeal by indulging in arguments unrelated to the grounds of appeal. It was stated that it is trite law that issues for determination must be raised from grounds of appeal and the ground must flow from the decision of the Court. It was argued that since paragraphs 60-71 are not issues emanating from the grounds of appeal and should therefore be discountenanced and struck out. Also, on the arguments canvassed at paragraphs 75 81 of the Respondent brief of argument about the purported correspondences from the office of the Honourable Attorney General of the Federation and Minister for Justice to the EFCC directing the EFCC not to prosecute the Respondent, it was submitted that the arguments are merely sentimental and ought to be disregarded.

Finally, the Court was urged to uphold the preliminary objection on the incompetence of the Respondent’s Notice and allow the appeal.

I will first of all dispose of the preliminary issues.

RESPONDENT’S NOTICE AND OBJECTION THERETO

Again, the Respondent filed a Respondent’s Notice dated the 9th of January, 2019 which was brought pursuant to Order 10 of the Court of Appeal Rules 2016, arguing that there was nothing before the Court to show that any element of the alleged offence took place within Federal Capital Territory to vest the High Court of the FCT with the territorial jurisdiction to adjudicate on the matter. The Respondent’s counsel has argued that it is trite law that it is where an offence is committed that a charge relating to the offence can be filed. Reference was made to NWANKWO VS. STATE (1983) 1 NCLR 366.

Counsel further cited the case of IBORI VS. FRN (2008) LPELR – 8370 (CA) where it was held that it is forum shopping when the prosecution initiates a charge outside the territory where the offence is alleged to have been committed.

The learned Respondent’s counsel has argued that the company, First Guarantee Pension Limited has its registered address in Lagos, the monies belonging to First Guarantee Pension Limited that formed the basis of Count one and two were paid into the company’s account in Lagos, the target report which the Appellant seeks to rely on in proof of the offence indicates that the grant of the funds as loan were breach of the provisions of the Money Lenders Law of Lagos state, the resolution which formed the basis of count 3 and 4 has nothing on the face of it to show that the alleged offence was committed in the Federal Capital Territory. Also, the Information filed in Lagos in NO: ID/2039C/2015 which is the same as the charge in this instant appeal gave the venue of the commission of the offence to be Lagos State.

The Respondent’s counsel has vehemently argued that based on all these, the High Court of the Federal Capital Territory do not have the territorial jurisdiction to adjudicate upon the charge. Thus, the initiating of the charge before the High Court of FCT amounts to abuse of judicial process.

The Respondent’s counsel also cited the cases of MAILANTARKI VS. TONGO & ORS (2017) LPELR – 42467 and DALHATU VS. TURAKI (2003) 15 NWLR (PT. 843) PAGE 310, wherein the Supreme Court has extensively defined the territorial jurisdiction of the High Court of the FCT in civil proceedings. It was also submitted that this decision applies mutatis mutandis in criminal proceedings.

Finally, the Court was urged to uphold the decision of the trial Court on this preliminary objection and dismiss the appeal.

In response, the Appellant has also filed a notice of preliminary objection to the competence of the Respondent’s notice of intention to contend that the ruling of the trial Court should be affirmed on other grounds than that which was relied on by the Court. A sole issue for determination was raised thus:

a. Whether the Respondent’s Notice contending that the ruling of the trial Court be affirmed on the ground that the High Court of the Federal Capital Territory lacked the territorial jurisdiction to try the Respondent (being a fresh issue that was never raised, canvassed or argued at the trial Court) is incompetent and liable to be struck out.

It was argued by Appellant’s counsel that a perusal of the notice of preliminary objection filed by the Respondent at the lower Court was centered on the fact that the entire proceeding is an abuse of Court process. The issue of territorial jurisdiction never arose at the trial Court. Thus, it was argued that this goes against the settled law that the Respondent having not raised, canvassed or argued on the issue of territorial jurisdiction at the lower Court, it has amounted to springing surprises by raising the issue under the cover of a Respondent’s Notice to affirm.

The Appellant’s counsel has stated the purpose of a Respondent’s notice to affirm and whether fresh issues can be raised therein, relying on the case of TOUTON S.A. VS. G.C.D.N.Z. S.P.A. (2011) 4 NWLR (PT. 1236) where it was held that in a Respondent’s Notice, a Respondent acknowledges that the lower Court came to the right conclusion but for the wrong reason, and therefore seeks an affirmation of the judgment or decision of the lower Court on grounds other than those relied upon by the lower Court. It is not an opportunity to raise fresh issues which had not come for consideration before the lower Court. The cases of WILLIAMS VS. DAILY TIMES (1990) 1 NWLR PART 124; FRN VS. OBEGOLU (2006) 1 NWLR PART 1010 PAGE 285; OGUNBADEJO VS. OWOYEMI (1993) 1 NWLR PART 271 PAGE 517 amongst others were cited in support.

The Court was urged to uphold the Appellant’s notice of preliminary objection challenging the competency of the Respondent’s Notice and strike out same accordingly.

However, the Appellant’s counsel has also stated that assuming without conceding that the Respondent’s notice raising fresh issue of the territorial jurisdiction was competent, the High Court of the FCT has the territorial jurisdiction to hear and determine the charge as constituted. Thus, all the argument of the Respondent on this issue should be discountenanced as misconceived.

It was submitted that in determining whether the FCT High Court has the requisite territorial jurisdiction to hear the charge, regard must be made to the statements in the proof of evidence. The case of NYAME VS. FRN (2010) 7 NWLR (PT. 1193) PAGE 344 was cited where the Supreme Court held that where the element of the offence or offences took place can only be garnered from the statements in the proof of evidence and not from any affidavit sworn to by the accused person.

Thus, it was argued by Appellant’s counsel that there is no doubt that some of the elements of the offences in the 4 counts charge occurred wholly in Abuja FCT. The Court was referred to pages 21-22 of the proof of evidence and the statement of Kashim Ibrahim Imam on page 26 which reveals that the Board Resolution dated 2nd June, 2008 which is the subject of the forgery count and using same as genuine in counts 3 and 4 of the charge took place in the FCT, Abuja. All the shareholders who purportedly signed the resolution reside within the FCT, Abuja and the First Guarantee Pension Limited hold its meetings in Abuja. Thus, it was argued that the forgery of the resolution which is the subject of count 3 and 4 of the charge took place in Abuja.

Finally, the Appellant’s counsel submitted, relying on Section 4 (2) (a) of the Penal Code, Cap 532 LFN 1990 that some of the elements of the offence constituted in the 4-count charge occurred in the FCT and thus, the High Court of the FCT had the territorial jurisdiction to entertain the suit.

I have read through the arguments of counsel on this preliminary objection and I will resolve same. In doing so, a question that must be answered is: What is the essence of a Respondent’s Notice?

In the case of UBA VS. CAC & ORS (2016) LPELR 40569, it was held thus:

Also, in the case of RE: NDIC VS. ROSABOL (NIG) LTD & ORS (2017) LPELR -41925, it was held that:

Finally, in the Supreme Court case of GWEDE VS. INEC (2015) ALL FWLR PART 767 PAGE 615 @ PAGE 644, it was held per Onnoghen JSC that:

The issue of territorial jurisdiction was never canvassed at the trial Court. It was neither raised in the notice of preliminary objection filed by the Respondent at the lower Court neither did it form part of the judgment appealed against. The question that readily comes to my mind is: On what grounds does the Respondent want the judgment varied and confirmed upon? Is it on a ground that is non-existent and not apparent from the records of appeal?

Since the issue of territorial jurisdiction was never canvassed at the trial Court and is found nowhere in the judgment appealed against, seeking for this Honourable Court to vary and affirm the judgment on the issue of territorial jurisdiction will amount to a great blunder. In the case of MACFOY VS. UAC (1962) AC 152, it was held that

“You cannot put something on nothing and expect it to stand. It must fall.’

Since the issue of territorial jurisdiction is not contained anywhere in the records, I hold the view that the Respondent’s Notice is grossly incompetent and an abuse of judicial process. The notice of preliminary objection filed by the Appellant challenging the Respondent’s Notice to affirm the judgment of the lower Court is hereby upheld as I agree with all the arguments and submissions of the Learned Appellant’s Counsel.

Also, in the case of PDP VS. OKOROCHA (2012) 15 NWLR (PT. 1323) PAGE 205, it was held that:

Jurisdiction is visualized as the very basis on which any Court or tribunal tries a case. It is the lifeline of all trials. Any trial without jurisdiction is a nullity. The question of jurisdiction being radically fundamental, it can be raised at any stage of the proceedings.”

From these cited authorities, it is clear that the issue of jurisdiction is one that cannot be ignored even if it is wrongly raised by the Appellant because it is the lifeline of all trials. This Court will not adjudicate on a matter when the issue of jurisdiction has been brought before it even if it was brought in a wrong package. This Court will not dwell on technicalities and mistakes of counsel in determining the issue of jurisdiction. In the case of ALIOKE VS. OYE (SUPRA) it was held per Peter-Odili that:

“the duty of the Supreme Court is to do substantial justice, stark justice, based on fairness which to all intent and purposes, seeks to not only ensure fairness in dispensing justice, but is manifestly seen and duly acknowledged by all and sundry as justice both in content and con. Thus, even in cases where errors of omission or commission called blunders have been made, it is unjust to hold that because blunders have been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits.”

I have read through the records of appeal particularly pages 88 – 89 where the ordinary resolution dated 2nd June 2008 wherein the Respondent has been alleged to have forged the signatures of some shareholders. All the shareholders whose signatures were said to have been forged and the meeting where the ordinary resolution was passed, took place in Abuja. From the proof of evidence, one of the prosecution witnesses had stated that the Respondent had visited him at his Abuja residence, requesting he sign the ordinary resolution which he refused to do. However, he later discovered his signature was on the resolution and he screamed Forgery!

Section 93 (1) of the Administration of Criminal Justice Act 2015 provides for the venue of criminal trials. It provides thus:

(1) An offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction:

A. The offence was wholly or in part committed, or some act forming part of the offence was done;

B. The consequence of the offence as ensued;

C. An offence was committed by reference to which the offence is denied;

D. A person against whom, or property in respect of which, the offence was committed is found, having been transported there by the suspect or by a person knowing of the offence.

(2) A criminal charge shall be filed and tried in the division where the alleged offence was committed unless it can be shown that it is convenient to do otherwise for security reasons.

By subsection 2 of Section 93, where an offence cannot be filed and tried in the territory where the offence was committed for “security reasons”, it can be tried in a different territory.

If the Respondent has been alleged to have forged the signature of the shareholders resident in Abuja, and in an ordinary resolution passed at a meeting which held in Abuja, it is my view that the High Court of the Federal Capital Territory had the jurisdiction to hear the matter by Section 93(1) Supra.

The preliminary issue is therefore resolved in favour of the Appellant.

MAIN APPEAL

Now into the main appeal, having read the briefs filed by both counsel to the Appellant and the Respondent, I hereby adopt the issues for determination raised by the Appellant and I shall go ahead to resolve same. They are hereunder reproduced as follows:

1. Whether the lower Court was right in quashing the charge preferred by the appellant against the respondent on the ground that the charge was initiated in abuse of Court process.

2. Whether the lower Court was right in quashing the charged preferred against the respondent on the ground that the charge was based on the Target Examination Report attached as proof of evidence and that there was no evidence of a different “report of investigation, when in fact there were other bundles of documents attached as proof of evidence for use at the trial to prove the appellant’s case against the respondent.

3. Whether the lower Court was justified in quashing the charge preferred against the respondent on the basis of the ruling of the Federal High Court in SUIT NO: FHC/A117/C5/61/2013-NZE CHIDI DURU & 2ORS V NIGERIA POLICE FORCE & 3 ORS purportedly restraining the EFCC from continuing with the prosecution of the respondent.

4. Whether the lower Court was right/correct in discharging the respondent of the charges when no legal incident justifying the discharge of the accused had occurred, to warrant same.

ISSUE ONE

1. Whether the lower Court was right in quashing the charge preferred by the appellant against the respondent on the ground that the charge was initiated in abuse of Court process.

Also, an abuse of process always involves some desire to misuse or pervert the system. See TSA INDUSTRIES LTD VS. F.B.N. PLC (2012) 14 NWLR (PT. 1320) PAGE 326.

I have read the part of the judgment of the trial Court pointed out by the Appellant which is contained on pages 841 – 842 of the record of appeal wherein it was held by the trial Court that:

“it is obvious from the institution of the present criminal charge against the Defendant/Applicant in defiance of valid and subsisting judgment/orders of the Federal High Court as well as the pendency of various suits and appeals revolving around the Target Examination Report of First Guarantee Pensions Ltd, cannot but constitute an improper use of the judicial process to unduly interfere with, if not undermine, the efficient and effective administration of justice. The competence of the instant criminal charge is therefore impaired as it is plagued by a feature that prevents this Court from exercising its undoubted jurisdiction..Accordingly, I will and do hereby record an order quashing Charge No: FCT/HC/CR/75/2017 FEDERAL REPUBLIC OF NIGERIA V NZE CHIDI DURU for being an abuse of Court process and/or for having been instituted in defiance of the subsisting orders of the Federal High Court. I equally record an order discharging and acquitting the Defendant/Applicant of the Charges preferred against him on that score without further assurance.”

The questions that must be asked are:

1) Was the charge filed by the Appellant at the trial Court predicated solely on the Target Examination Report?

2) Does the order nullifying the Target Examination Report constitute as an absolute bar from any kind of civil and criminal action being instituted against the Respondent?

3) What were the factors considered by the trial judge to arrive at the conclusion that the charge filed by the Appellant amounted to an abuse of Court process?

4) At what stage would it be appropriate for the trial judge to quash the charge against the Respondent on the ground that it is an abuse of Court process?

I have read the charge filed by the Appellant at the trial Court and also the Notice of Preliminary Objection filed by the Respondent. The charge bordered mainly on criminal breach of trust and forgery. The proof of evidence frontloaded by the prosecution contained the target report amongst other bundles of investigation reports.

It is my view that SUIT NO: FHC/CS/AB3/709/2011 – DERRICK ROPER AND NOVARE HOLDINGS (PROPRIETARY LIMITED VS. NATIONAL PENSION COMMISSION, ATTORNEY GENERAL OF THE FEDERATION AND FIRST GUARANTEE PENSION LIMITED, wherein the Target Report was nullified by a judgment delivered by Justice Okorowo on the 18th of July, 2012 is not binding on the Respondent as he was not a party to the suit. The restraining order granted was against the 1st and 2nd Respondent who are the National Pension Commission and the Attorney General of the Federation, restraining them from taking any action or sanction on the Applicants who are Derrick Roper and Novare Holdings Limited. However, I will not belabour this issue as it is not relevant at this stage.

In SUIT NO: FHC/ABJ/CS/61/ 2013 – NZE CHIDI DURU & 2 ORS VS. THE NIGERIAN POLICE FORCE & 3 ORS, the ruling of Justice G. O. Kolawole delivered on the 9th of October, 2016 contained on page 745 of the Records of Appeal ordered that:

“…pursuant to Order 56 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2009, the Plaintiffs’ suit constituted by the ‘Amended Originating Summons” to which the Defendants have filed their respective “Counter Affidavit” shall be heard expeditiously so that within a reasonable period of time, in the con of the letters and spirit of the provision of Section 36(1) of the 1999 CFRN, both parties shall know their respective fate and in the event that the Plaintiffs’ suit fails, the 3rd and 4th Defendants can legitimately proceed in the exercise of their statutory powers, to resume the prosecution of the 1st Plaintiff who is named as the only “Defendant” in the “Information” dated 5/10/15 and attached as Exhibit MDA-2 to the Plaintiffs’ Motion on Notice dated 13/4/2010. The said “Motion on Notice” succeeds as prayed. The Plaintiffs’ Amended Originating Summons” shall be accorded accelerated hearing,”

From this ruling, it is clear that unless and until the final determination in Suit No:

FHC/ABJ/CS/61/2013, the Appellant cannot institute any criminal proceeding against the Respondent in respect of the Target Report. There is nothing before this Court showing that this ruling has been set aside on appeal or that the suit has been determined. Thus, if the charge giving rise to the instant appeal is based solely on the Target Report, it is grossly incompetent, an abuse of Court process and must be struck out.

However, can it be said that the charge is based on the Target Report? I have painstakingly read through the whole Target Report and I can boldly say that Counts 1 and 2 are based primarily on the Target Report. The sum of #15,000,000 and #1,123,646.58 were clearly stated in the Target Report as emanating from the same transaction as that stated in the charge. Counts 1 and 2 of the charge are therefore hereby struck out for emanating from the Target Report and in breach of the orders of Kolawole J.

However, can it also be said that counts 3 and 4 is also based on the target report? I do not think so. I do not see any part of the Target Report where the issue of forgery of signature in the ordinary resolution dated 2nd June, 2008 was raised.

The Appellant at the trial Court deposed to facts in its counter affidavit to the notice of preliminary objection filed by the Respondent, stating that although the Target Report was attached as part of the proof of evidence, there are also bundle of investigation reports upon which it intends to prove its case against the Respondent. Having said this, the entire charge initiated by the Appellant cannot be said to be an abuse of Court process.

To my mind, I keep wondering why the learned trial judge was so much in a haste to strike out the charge at such a preliminary stage. I know that the ACJA 2015 has encouraged judges to ensure speedy dispensation of cases, however, judges must learn how to apply their brakes when trying to be fast in order to avoid miscarriage of justice. This brings to my mind the saying,

Justice rushed can become justice crushed.”

I do not agree with the findings of the trial Court on the issue that the entire charge filed by the Appellant amounted to an abuse of Court process.

Issue one is hereby resolved in part in favour of the Appellant.

ISSUE TWO

2. Whether the lower Court was right in quashing the charged preferred against the respondent on the ground that the charge was based on the Target Examination Report attached as proof of evidence and that there was no evidence of a different “report of investigation”, when in fact there were other bundles of documents attached as proof of evidence for use at the trial to prove the appellant’s case against the respondent.

In the case of FRN VS. WABARA & ORS (2013) LPELR- 20083, the Supreme Court explained that:

In the case of PIUS VS. THE STATE (2012) LPELR 9304, it was held that

In the case of IBEKWE VS. FEDERAL REPUBLIC OF NIGERIA (2004) ALL FWLR (PT. 213) PAGE 1780, it was held that:

From these few cases cited, it will be safe to say that the proof of evidence are just summaries of the evidence the prosecution intends to rely on at trial. It does not have to be the full detailed bundle of evidence which the prosecution intends to use to prove its case against a defendant. What is necessary is that the proof of evidence in the case, viewed at a glance, connects the defendant with the commission of the offence charged. At the preliminary stage, all that is needed is to ensure that the proof of evidence (including the statements of witnesses to the police) link the defendant with the charge sheet and/or commission of the alleged offence(s), which is the position in the case at the Court below. See UHUANGHO VS. FRN (2016) LPELR 42214.

I have read through the judgment of the trial Court contained on page 832 of the Records of appeal where he said:

“Indeed a peep into the Target Examination Report and the four count charge before me reveals that the allegations against the Defendant/Applicant in both documents are essentially the same. Fundamentally, no evidence of a different “report of investigation” which can be said to constitute the basis of the present criminal charge against the Defendant/Applicant has been produced before this Court. Evidence is the basis of justice and it is well settled that Courts of law can only act on the basis of evidence. It would be invidious if the Courts were at liberty to decide issues in controversy between parties otherwise than on the basis of evidence placed before them. See IBRAHIM V SHAGARI (1983) ALL IVLR 5071′. (Underlining is mine for emphasis).

From the above, it is clear that the learned trial judge regarded the proof of evidence before him as evidence upon which he could summarily decide whether or not there was sufficient evidence to be used by the prosecution in proving its case against the Defendant. This is absolutely wrong. The case would be different if all the prosecution frontloaded as the proof of evidence was the Target Examination Report. The trial judge would have been right in quashing the charge as the Target Report is a “no go area” for the prosecution of the Respondent until the final determination of Suit No: FHC/ABJ/CS/61/2013.

It was too early and premature for the trial judge to quash the charge because in his view, there was no evidence of a different “report of investigation” which can be said to constitute the basis of the present criminal charge against the Defendant/Applicant that has been produced before this Court. Was the trial judge expecting the other proof of evidence which the prosecution intended to rely upon to come in a particular form and package? Like I have earlier said, proof of evidence is not evidence and it has no evidential value. It only becomes evidence when the prosecution relies on it during the trial.

In the case of UGBEDE ALI VS. THE STATE (2012) 10 NWLR (PT. 1309) PAGE 589, it was held:

It is the law that matters, for substantive hearing cannot be delved into at the interlocutory stage

The learned judge was wrong in quashing the entire charge before him after he simply perused and disregarded the other documents attached as proof of evidence other than the Target Examination Report.

Issue two is hereby resolved in part in favour of the Appellant.

ISSUE THREE

3. Whether the lower Court was justified in quashing the charge preferred against the respondent on the basis of the ruling of the Federal High Court in SUIT NO: FHC/ABJ/C5/61/2013-NZE CHIDI DURU & 2ORS V NIGERIA POLICE FORCE & 3 ORS purportedly restraining the EFCC from continuing with the prosecution of the respondent.

In the Supreme Court case of KAMALU & ORS VS. UMUNNA & ORS (1997) LPELR ? 1657, it was held that:

A judgment of a Court of competent jurisdiction remains valid and binding unless and until it is set aside by an appellate Court or by the lower Court itself where it acted without jurisdiction.”

In the case of ALIMS NIG. LTD VS UBA PLC (2007) ALL FWLR (PT. 348) PAGE 971 AT 981 PARAS B – D, it was held that:

”A judgment or order of a Court of competent jurisdiction remains valid and binding unless and until it is set aside by an appellate Court or by the lower Court itself where it acted without jurisdiction, and there is an unqualified obligation on every person against whom it is given to obey it unless and until it is set aside. The rationale is that to hold otherwise will be to cloth a party against whom a judgment or order is given with the discretion to decide, in his own wisdom, whether the judgment or order is invalid and not binding on him, a situation which rightly has been described as amounting to an invitation to anarchy.”

Finally, in the recent Supreme Court case of ZAKIRAI VS. MUHAMMAD & ORS (2017) LPELR -42349, it was held per Peter-Odili, JSC that: A judgment of a Court of competent jurisdiction remains vatid and binding even where the person affected by it believes that it is void, until it is set aside by a Court of competent jurisdiction. The position therefore is that a person who knows of a judgment, whether null or void, given against him by a Court of competent jurisdiction cannot be permitted to disobey it. His unqualified obligation is to obey it unless and until that judgment is set aside.”

See also BABATUNDE VS. OLATUNJI (2000) 2 NWLR (PT. 646) PAGE 568.

The Respondent who was plaintiff in SUIT NO: FHC/ABJ/CS/61/2013 between NZE CHIDI DURU & 2 ORS VS.THE NIGERIAN POLICE FORCE & 3 ORS,filed a motion on notice, seeking for an injunction against the Defendants from taking actions and actions against him in respect of the Target Examination Report. A ruling was delivered by Justice G. O. Kolawole on the 9th of October, 2016 and I will like to quote again the part of ruling contained on page 745 of the Records of Appeal where it was ordered that:

“…pursuant to Order 56 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2009, the Plaintiffs’ suit constituted by the ‘Amended Originating Summons” to which the Defendants have filed their respective “Counter Affidavit” shall be heard expeditiously so that within a reasonable period of time, in the con of the letters and spirit of the provision of Section 36(1) of the 1999 CFRN, both parties shall know their respective fate and in the event that the Plaintiffs’ suit fails, the 3rd and 4th Defendants can legitimately proceed in the exercise of their statutory powers, to resume the prosecution of the 1st Plaintiff who is named as the only “Defendant” in the “Information” dated 5/10/15 and attached as Exhibit MDA-2 to the Plaintiffs’ Motion on Notice dated 13/4/2010. The said “Motion on Notice” succeeds as prayed. The Plaintiffs’ ‘Amended Originating Summons” shall be accorded accelerated hearing.”

It is clear that the learned Justice G. O. Kolawole had made an order restraining the Appellant who was 4th Defendant in the said suit, from initiating criminal proceedings against the Respondent in respect of the Target Examination Report unless and until the Plaintiff’s suit fails or the order is set aside on appeal.

From this ruling, it is clear that unless and until the final determination of Suit No: FHC/ABJ/CS/61/2013, the Appellant cannot institute any criminal proceeding against the Respondent in respect of the Target Report. There is nothing before this Court showing that this ruling has been set aside on appeal or that the suit has been determined. Thus, if the charge giving rise to the instant appeal is based solely on the Target Report, it will be grossly incompetent, an abuse of Court process and must be struck out.

Thus, if this issue for determination is to be resolved, I will say that the learned trial judge was wrong in quashing the entire charge preferred against the Respondent on the basis of the ruling of the Federal High Court in SUIT NO: FHC/ABJ/CS/61/2013 NZE CHIDI DURU & 2 ORS VS. NIGERIA POLICE FORCE & 3 ORS because upon a closer look at count 3 and 4 of the charge and the proof of evidence supplied by the Prosecution, it is an entirely different criminal allegation which is not covered by the Target Examination Report.

Issue three is hereby resolved in part in favour of the Appellant as counts 3 and 4 of the charge survive and ought not to have been struck out by the trial judge.

ISSUE FOUR

4. Whether the lower Court was right/correct in discharging the respondent of the charges when no legal incident justifying the discharge of the accused had occurred, to warrant same.

In the case of SHANDE VS. STATE (2005) 12 NWLR (PT. 939) PAGE 301, it was held:

“Now, under our criminal jurisprudence where doubt exists in the mind of the Court on the guilt of an accused person, the Court should acquit and discharge the accused.

In the case of MADU VS. STATE (2000) LPELR 9875, it was held that:

“It is trite law that where the prosecution has failed to establish a case against an accused person, the trial Court has no alternative but to discharge and acquit the accused.”

Finally, in the case of STATE VS. AZEEZ (2008) 14 NWLR (PT. 1108) PAGE 439 AT 483, it was held:

“The law is well settled that where there is doubt in a criminal trial, such doubt is resolved in favour of the accused person… where prosecution evidence is found to be contradictory on a material issue, the Court should give the benefit of that doubt to an accused person that stems from the non-credibility of such evidence and discharge and acquit him.’

The provisions of Section 277 (4) of the Administration of Criminal Justice Act 2015 state thus:

“Nothing in this Section shall prevent a defendant from pleading that by virtue of some other provision of law, he is not liable to be prosecuted or tried for an offence with which he is charged.”

I have read the arguments of Learned Counsel for the Appellant stating that an accused person who has been validly arraigned before a competent Court to face criminal prosecution can only be discharged upon the occurrence of certain legal incidents as follows:

(i) Lack of diligent prosecution by the prosecution.

(ii) Where upon the close of the case of the prosecution, the accused makes a no case submission and the trial Court upholds same. i.e where there is no prima facie case to warrant a defence by the accused.

(iii) Where the Hon. Attorney General pursuant to the exercise of Constitutional powers enters a nolle prosequi/withdrawal of charges.

(iv) Where the accused successfully raises the plea of autre fois convict or autre foils acquit.

(v) Where there is an established credible/genuine case of abuse of Court process.

Although no case was cited in support, I proceeded to read the judgment of the trial Court particularly at pages 841 and 842 of the Record of Appeal which states:

”Accordingly, I will and do hereby record an order

Quashing Charge No: FCT/HC/CR/75/2017; FEDERAL REPUBLIC OF NIGERIA V NZE CHIDI DURU for being an abuse of Court process and/or for having been instituted in defiance of the subsisting orders of the Federal High Court. I equally record an order discharging and acquitting the Defendant/Applicant of the charges preferred against him on that score without further assurance. And in order to give effect to and not defeat the essence of the subsisting judgment and/or order of the Federal High Court in relation to the Target Examination Report of First Guarantee Pensions Limited and in particular the order of interlocutory injunction granted on 10/11/16 by G.O Kolawole J in Suit No: FHC/ABJ/CS/62/2013: NZE CHIDI DURU & 2 ORS V THE NIGERIAN POLICE FORCE & 3 ORS restraining the defendants therein (particularly the Executive Chairman of EFCC and the EFCC) in personam, the Prosecution/Respondent shall not initiate or prefer any further criminal charge(s) against the Defendant/Applicant herein, Nze Chidi Duru on the self-same allegations contained in the said Target Examination Report underlying the present criminal charge UNTIL AND UNLESS the said Suit No:

FHC/ABJ/CS/61/2013 is conclusively determined or the order of interlocutory injunction aforesaid is otherwise vacated or set aside. IT IS SO ORDERED. “(Underlining mine for emphasis).

It is clear that the learned trial judge based on his findings and conclusions quashed the charge for being an abuse of Court process as it was initiated in disregard of a subsisting Court order delivered in Suit No: FHC/ABJ/CS/61/2013 made by Justice G. O. Kolawole of the Federal High Court.

I would have agreed totally with his reasoning and conclusion if the entire charge was premised on the Target Examination Report. If that was the case, the charge would have been an abuse of Court process and the Respondent must be discharged. However, it is my view that Counts 3 and 4 of the said charge did not emanate from the Target Examination Report. It was very premature for the learned trial judge to hastily quash the charge on the grounds that it was solely premised on the Target Examination Report.

The learned trial judge should have struck out only Count 1 and 2 and then allow the prosecution to prove Count 3 and 4 based on the other investigation reports frontloaded in the proof of evidence. As we all know, the standard of proof in our criminal jurisprudence is that “the guilt of the accused must be proven beyond reasonable doubt”. Let the Appellant be allowed to prove the charge against the Respondent.

I hereby resolve this issue partly in favour of the Appellant.

In its entirety, the appeal succeeds in part as Counts 3 and 4 of the charge survives. The judgment of the trial Court quashing counts 3 and 4 is hereby set aside. The matter is hereby remitted back to the High Court of the Federal Capital Territory for retrial before another judge of the said Court.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I had the preview of the lead judgment of my learned brother, MOHAMMED BABA IDRIS, JCA.

I am in agreement with his reasoning and conclusion and orders reached therein.

Let me make some comment on the issue of the discharge of the counts and its implication thereof.

The Appellant preferred a four count charge against the Respondent on 16 January, 2017 bordering offences relating to economic and financial crimes as follows:

Count 1

That you Nze Chidi Duru while being the Vice Chairman of First Guarantee Pension Limited. Sometime in July, 2010 at Abuja Judicial Division of the High Court of the Federal Capital Territory being entrusted with dominion over certain properties to wit; N5,000,000,00 Fifteen naira being park; payment of 30% equity share of First Guarantee Pension Limited sold to Novare Holding Proprietary Limited, committed criminal breach of trust in respect of the said sum by diverting same to pay for land allocations from Lagos State Government in favour of Grand Tower Plc. and MV JJDA Africa Limited, companies of which you have interest and you there by committed an offence punishable under Section 315 of the Panel Code Act Cap. 532 Laws of the Federation of Nigeria 1990.

Count 2

That you Nze Chidi Duru while being the vice Chairman of First Guarantee Pension Limited. Sometime in July, 2010 at Abuja in the Abuja Judicial Division of the High Court of the Federal Capital Territory being entrusted with dominion over certain properties to wit: #1,123,646.58 (One Million, One Hundred and Twenty Three Thousand, Six Hundred and Forty Six Naira, Fifty Eight Kobo being part payment of 30% equity share of First Guarantee Pension Limited sold to Novare Holdings Proprietary Limited, committed criminal breach of trust in respect of the said sum by authorized same to be paid into the First Bank Plc. Account of B. P. Outsourcing Limited, a company of which you have interest and you thereby committed an offence punishable under Section 315 of the Penal Code Act Cap. 532 Laws of the Federation of Nigeria 1990. Count 3

That you Nze Chidi Duru while being the vice Chairman of First Guarantee Pension Limited. Sometime in June, 2008 at Abuja in the Abuja Judicial Division of the High Court of the Federal Capital Territory did knowingly and fraudulently make a false document to wit: an ordinary resolution of First Guarantee Pension Limited dated 2nd June, 2008 purporting same to have been signed by all the subscribers/Shareholders of the said First Guarantee Pension Limited which you knew to be false and you thereby committed an offence punishable under Section 364 of the Penal Code Act Cap. 532 Laws of the Federation of Nigeria 1990.

Count 4

That you Nze Chide Duru while being the vice Chairman of First Guarantee Pension Limited. Sometime in June, 2008 at Abuja in the Abuja Judicial Division of the High Court of the Federal Capital Territory did knowingly and fraudulently use as genuine a forged document to wit: an ordinary resolution of First Guarantee Pension Limited dated 2nd June, 2008 purporting same to have been signed by all the subscribers/shareholders of the said First Guarantee Pension Limited and forwarded same to Folashade Ogundare and Hon. Isegha Terngu with the intention of causing it to be believed that the said document was genuine which you knew to be false and thereby committed an offence contrary to Section 366 of the Penal Code Act Cap. 532 Laws of the Federation of Nigeria 1990 and punishable under Section 354 of the same Act.

Upon a preliminary objection filed by the Respondent for the lower Court to decline jurisdiction on the ground of abuse of process of Court, the lower Court upheld the objection and consequently quashed the charge and discharged the Respondent; thusly:

“Accordingly, I will and do hereby record an order quashing Charge No. FCT/HC/CR/75/2017; FEDERAL REPUBLIC OF NIGERIA V. NZE CHIDI DURU for being an abuse of Court process and/or for having been instituted in defiance of the subsisting orders of the Federal High Court. I equally record an order discharging and acquitting the Defendant of the charges preferred against him on that score without further assurance. And in order to give effect to and not defeat the essence of the subsisting judgment and/or order of the Federal High Court in relation to the Target Examination Report of First Guarantee Pension Limited and in particular the order of interlocutory injunction granted on 10/11/16 by G. O. Kolawole J. in Suit No: FHC/ABJ/CS/62/2013: NZE CHIDE DURU & 2 ORS v. THE NIGERIAN POLICE FORCE & 3 ORS restraining the defendants therein (Particularly the Executive Chairman of EFCC and the EFCC) in personam, the Prosecution/Respondent shall not initiate or prefer any further criminal charge(s) against the Defendant/Appellant herein NZE CHIDI DURU on the self-same allegations contained in the said Suit Ho: FHC/ABJ/CS/61/2013 is conclusively determined or the order of interlocutory injunction aforesaid is otherwise vacated or set aside. IT IS SO ORDERED.” (Underlining mine for emphasis)

Counts 1 and 2 of the charge were clearly based on the Target Examination Report upon which Kolawole J. (now JCA) had granted an interlocutory order in suit No. FHC/ABJ/CS/61/2013: Nze Chidi Duru & 2 Ors: v. The Nigerian Police Force & 3 Ors suspending the prosecution of the Appellant pending the determination of suit No. FHC/AB/CS/61/2013. There was no evidence before the Court below that the said suit had been completed, hence the learned trial Judge quashed the charge.

In the circumstances, the submission of the learned counsel to the Appellant giving the impression that the Court was shielding the Appellant from prosecution by his quashing the charge, particularly counts 1 and 2 is misconceived and misleading. The case of Attorney-General of Anambra State v. UBA (2005) 15 NWLR (Pt. 947) 44 at 67 heavily relied on by the Appellant where Bulkachuwa JCA (now PCA) stated as follows:

“For a person, therefore to go to Court to be shielded against criminal investigation and prosecution is an interference of powers given by the Constitution to law officers in the control of Criminal investigation. The plaintiff has no legally recognizable right to which the Court can come to his aid the plaintiff cannot expect a judicial flat preventing a Constitutional power.”

is not apposite to this case.

The Court below merely discharged the Appellant on the ground that all the four counts of the charge had bearing with Target Examination Report. He did not acquit the Appellant. However, as rightly held by my learned brother, only counts 1 and 2 have bearing with the ruling of Justice Kolawola, and not counts 3 and 4.

The principle of law is trite that a discharge of a defendant or an accused person does not bar the prosecution from initiating a criminal charge against him as a discharge before arraignment is not considered a charge on the merit since no evidence has been taken and as such not an acquittal.

The attachment of a proof of evidence to a charge or Information does not constitute evidence, it is not part of trial proceedings. The essence of attaching proof of evidence to an Information is merely to x-ray the prosecution case as likened to pleadings in civil matters, it however does not amount to trial proceedings. The learned trial Judge therefore erred in law when he regarded the proof of evidence as evidence obtained in proceedings to quash the entire charge. See Abacha vs State (2002.) LPELR-16 (SC), Uwazuruike vs. AG Federation (2013) 10 NWLR. (Pt 1361) 105, FRN (Pt. 1423) 168.

For this, and fuller reasons enunciated by my learned brother in the lead judgment, this appeal succeeds in part as rightly analysed by my learned brother. I abide by the consequential orders in the lead judgment.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, MOHAMMED BABA IDRIS, JCA. I agree with the reasoning, conclusions and orders therein.

Appearances:

S. Tahir, Esq. with him, A. Habib, Esq. and F. Fadogwaram, Esq.For Appellant(s)

A. Mohammed, Esq. with him, I. T. Abdulrasheed, Esq. and M. K. Shitta, Esq.For Respondent(s)

Appearances

S. Tahir, Esq. with him, A. Habib, Esq. and F. Fadogwaram, Esq.For Appellant

AND

A. Mohammed, Esq. with him, I. T. Abdulrasheed, Esq. and M. K. Shitta, Esq.For Respondent