FEMI FANI-KAYODE v. FEDERAL REPUBLIC OF NIGERIA & ORS
(2019)LCN/12542(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of January, 2019
CA/L/722C/2018
RATIO
CRIMINAL LAW: JUDICIAL DIVISION TO SETTLE CRIMINAL MATTERS
“It is also however settled that same has been divided into Judicial Divisions and where a crime has been committed, such crime ought to be prosecuted in the Judicial Division of the Federal High Court in the State or States where any of the elements of the crime was allegedly committed, or one that is close to it, subject to the power of transfer, by which a matter may be tried outside the State of commission upon compelling reasons to so do. The foregoing is in my view the import of the Provisions of Sections, Section 45 of the Federal high Court Act; and Sections 93, 98, 385, 386 of the Administration of Criminal Justice Act, 2015, relied on by both parties. See: ABDULLAHI v. FRN (2018) LPELR-44719(CA); and Ibori v. Federal Republic of Nigeria (2008) LPELR-8370(CA).” PER JAMILU YAMMAMA TUKUR, J.C.A.
FUNDAMENTAL LAW: THE RIGHT OF FAIR HEARING
“There is no doubt that the issue of adequate facilities for defence on the part of an Accused person is an aspect of the fundamental right to fair hearing as enshrined in the grundnorm, the 1999 Constitution of the Federal Republic of Nigeria (as amended). It is therefore an issue that is of the utmost importance in the mind of the Court. See: Shema & Ors v. FRN (2018) LPELR-43723(SC); Ugboji v. State (2017) LPELR-43427(SC); and Offor & Anor v. C.O.P Rivers State Police Command (2013) LPELR-21170(CA). Learned counsel for the Appellant had submitted that the failure of the trial Court to pronounce on the issue constitutes a breach of Appellant’s right to fair hearing. Now while a Court has a duty to pronounce on all the key issues in a matter, it is not every failure of a Court to pronounce on issues that would constitute a breach of fundamental right to fair hearing.” PER JAMILU YAMMAMA TUKUR, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
FEMI FANI KAYODE – Appellant(s)
AND
1. FEDERAL REPUBLIC OF NIGERIA
2. NENADI ESTHER USMAN
3. DANJUMA YUSUF
4. JOINTRUST DIMENSIONS NIGERIA LTD – Respondent(s)
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the ruling of the Federal High Court Lagos Division in CHARGE NO: FHC/L/251C/2016 delivered by Honourable Justice R.M. Aikawa wherein the Court gave judgment in favour of the 1st Respondent.
The material facts leading to this appeal are that the Appellant was charged alongside the 2nd, 3rd and 4th Respondents in charge no. FHC/L/251C/2016, dated 13th June, 2016, before the Federal High Court Lagos Division. Appellant was arraigned and trial commenced. Appellant acting on the belief that the Lagos Division of the lower Court was not the proper forum for the trial of the matter brought an application dated 15th day of May, 2017, seeking the following:
1. An order of this Honourable Court declining jurisdiction and transferring the charges preferred against the 2nd Defendant/Applicant as presently constituted in Charge No. FHC/L/251C/2016 Federal Republic of Nigeria v. Nnenadi Esther Usman & 3 Ors to the Abuja Judicial Division of this Honourable Court on the strength of the grounds disclosed above.
2. An Order of this Honourable Court directing the Registrar of this Honourable Court to return the file in Charge No. FHC/251C/2016 Federal Republic of Nigeria v. Nnenadi Esther Usman & 3 Ors to the Honourable Chief Judge of the Federal High Court for reassignment to a Judge of the Abuja Judicial Division of this Honourable Court, in consequence of the grant of prayer 1 above.
3. And for such further order or orders this Honourable Court may deem fit to grant in the circumstance.
The application was based on the following grounds:
1. The transactions leading to the alleged offence as currently constituted before this Honourable Court occurred in Abuja while the 2nd Defendant/Applicant was the Director of Media and Publicity of the Goodluck Jonathan Presidential Campaign Organisation (PCO) with its office in Abuja outside the Lagos Division of this Honourable Court.
2. The 2nd Defendant/Applicant lives in Abuja and transacted all the businesses of the PCO referred to in this criminal charge in Abuja.
3. All the Defendants in this matter live and work outside the Lagos Division of this Honourable Court.
4. All the proposed witnesses of the Complainant/Respondent including majority of the branches of financial institutions involved in the transactions culminating in this charge reside and conduct business in Abuja outside the jurisdiction of this Honourable Court and within the Abuja Division of the Federal High Court.
5. The 2nd Defendant/Applicant is presently standing trial in a sister case within the Abuja Division of this Honourable Court in Charge No. FHC/ABJ/CR/140/2016 Federal Republic of Nigeria v. Chief Femi Fani Kayode.
6. By the provisions of Section 93(1) and (2) of the Administration of Criminal Justice Act, 2015, this present charge is mandatorily required to be filed and tried in the Judicial Division of the Federal High Court where the alleged offence was committed.
7. This Honourable Court is empowered under Section 386(a) and 492(1) of the Administration of Criminal Justice Act, 2015 and under its inherent powers to transfer a criminal charge involving different Defendants to another judicial Division whenever the interest of justice would be met by so doing, as in the instant case.
1st Respondent filed requisite processes in reply and the motion was duly argued. In a ruling dated 26th September, 2017, the learned trial Judge dismissed Appellants application.
Dissatisfied with the above, the Appellant appealed to this Court vide a Notice of Appeal dated 17th May, 2018, with three grounds of appeal.
The Appellants Brief of Argument is dated 6th June, 2018, and filed on 7th June, 2018. The Appellants Reply Brief is dated 28th November, 2018 and filed on 29th November, 2018.
Appellants counsel formulated three issues for determination to wit:
1. Whether the lower Court has the territorial jurisdiction to try the Appellant on the charge against him in charge no. FHC/251C/2016: Federal Republic of Nigeria v. Nnenadi Esther Usman & 3 Ors in Lagos Judicial Division? (Ground 1)
2. Whether by virtue of the principle of stare decisis, the lower Court is not bound to follow this Courts decision in Ibori v. FRN (2009) 3 NWLR (Pt.1128) at 283 on the same issue? (Ground 2)
3. Whether the right of the Appellant to fair hearing was not breached and violated by the lower Courts failure to consider the Appellants ground(s) of objection (Ground 3).
On the other hand, the 1st Respondents Brief settled by Rotimi Oyedepo Iseoluwa Esq is dated 26th November, 2018, and filed on 27th November, 2018.
1st Respondents counsel distilled two issues for determination to wit:
1. Whether having regards to the facts and circumstances of this case it can be said that the lower Court lacks territorial jurisdiction to try Appellant on the charges against him in Lagos. (Grounds 1 and 2)
2. Whether having regards to the facts and circumstances of this case it can be said that the Appellants right to fair hearing was breached and violated by the lower Court in determining the Appellants motion dated 15th May, 2017. (Ground 3)
The issues raised by counsel on both sides are substantially the same, and I therefore proceed to determine the appeal on the issues raised by the 1st Respondent, for the purpose of convenience.
ISSUE ONE:
WHETHER HAVING REGARDS TO THE FACTS AND CIRCUMSTANCES OF THIS CASE, IT CAN BE SAID THAT THE LOWER COURT LACKS TERRITORIAL JURISDICTION TO TRY APPELLANT ON THE CHARGES AGAINST HIM IN LAGOS. (GROUNDS 1 AND 2)
Learned counsel for the Appellant argued that by virtue of Section 45(a) and (b) of the Federal High Court Act, Section 93(1) Administration of Criminal Justice Act and the decision in Ibori v. FRN, the current state of the law is to the effect that an Accused person should be tried either at the place of commission of the alleged offence or at a place most proximate to such a place.
Learned counsel argued that a juxtaposition of the above stated position of the law to the facts of this appeal reveals that a continuation of the Appellants trial in Lagos would be against the law and constitute a grave injustice to the Appellant.
He submitted that the arguments of the 1st Respondent against the application of the Appellant seeking transfer of the case at trial, ought not to have been upheld by the lower Court, as the fact that the PW1 resides in Lagos is not enough justification for holding the trial in Lagos because the bulk of the transactions subject matter of the charge, occurred in Abuja. He also submitted that the fact that the Iboris case was decided before the enactment of the Administration of Criminal Justice Act 2015, does not detract from the validity of the principle of law therein laid down, as the case examined the provisions of Section 45 Federal High Court Act and the decision was codified in the ACJA. Thus the lower Court ought to be bound by it in line with the settled principle of stare decisis.
He relied on the cases of N.A.O.C LTD v. NKWEKE (2016) 7 NWLR (PT. 1512) 588 @ 617; and Adeyemi & Ors v. V.O. Achimu/NDIC/Assurance Bank Ltd & Ors (2015) LPELR-24379(CA).
He relied on Sections 93(2), 385 of the Administration of Criminal Justice Act 2015; and Roda v. FRN (2015) 10 NWLR (Pt. 1468) 427 @ 475-476.
On the other hand, learned counsel for the 1st Respondent argued that the power of transfer of a case is discretionary and may only be exercised in light of the whole circumstances of the case to allow a matter to be tried in a division other than where the alleged offence was committed, and had already been validly exercised by the Chief Judge of the lower Court.
He relied on Section 45 of the Federal high Court Act; Sections 93, 98, 385, 386 of the Administration of Criminal Justice Act, 2015; Zakari v. The State (2008) LPELR 4925 page 12-13; Alhaji Chief A.B. Bakare v. AGF & 2 Ors (1990) 5 NWLR (Pt. 152) 516; Atayi Farms Ltd v. Nigeria Agriculture Co-operative Bank Ltd & Anor (2002) LPELR 7076; Alaya v. State (2007) 16 NWLR (Pt. 1061) 483 at 513; INCAR (Nig) Plc v. Boles Ent (Nig) Plc (1996) 8 NWLR (Pt.460) 687; and Dokubo-Asari v. FRN (2007) LPELR-958 SC.
Learned counsel for the 1st Respondent also argued that the cases of Ibori v. FRN (supra); and Roda v. FRN (supra) relied upon by the Appellant is not applicable to the facts and circumstances of this appeal because they were decided before the enactment of the Administration of Criminal Justice Act 2015, and did not consider the Chief Judges power of transfer under Section 98 of the Act.
Counsel submitted that part of the ingredients of the offence alleged against the Appellant occurred in Lagos, as the PW1 who received funds connected with the offence resides in Lagos, the instruments of transactions issued by the Appellant to Zenith Bank were all recovered in Lagos and no part of the transaction in question was consummated without the approval of the Head Office of Zenith Bank, which is situate in Lagos.
In the reply brief, Appellants counsel submitted that this appeal was not against the Chief Judges power of transfer; that the case of Zakari v. The State (supra) is not applicable to this appeal, as that decision dwelt on appeal against exercise of the power of transfer; and that the arguments of the 1st Respondent to the effect that the ingredients of the offence occurred in Lagos cannot stand, because the PW1 though resident in Lagos, bid, executed and got paid in Abuja, and the mere fact that the Headquarters of the Bank involved is in Lagos does not make Lagos the place of commission of the offence.
RESOLUTION
There is no doubt that the starting point with regards to the territorial jurisdiction of the Federal High Court is the statutorily codified and judicially noticed principle that the jurisdiction of the Federal High Court is one and nationwide. It is also however settled that same has been divided into Judicial Divisions and where a crime has been committed, such crime ought to be prosecuted in the Judicial Division of the Federal High Court in the State or States where any of the elements of the crime was allegedly committed, or one that is close to it, subject to the power of transfer, by which a matter may be tried outside the State of commission upon compelling reasons to so do. The foregoing is in my view the import of the Provisions of Sections, Section 45 of the Federal high Court Act; and Sections 93, 98, 385, 386 of the Administration of Criminal Justice Act, 2015, relied on by both parties.
See: ABDULLAHI v. FRN (2018) LPELR-44719(CA); and Ibori v. Federal Republic of Nigeria (2008) LPELR-8370(CA).
The first major question that must be answered in this appeal is whether any element of the crime allegedly committed by the Appellant occurred in Lagos. A look at the charge sheet at pages 3-8 of the record reveals that one of the offences charged against the Appellant, particularly in count 17, which revolves around the payment of a certain sum to PW1 apparently, occurred in Lagos. This is what the trial Judge was referring to at page 1058 of the records where after referring to Section 93 of the Administration of Criminal Justice Act, 2015, stated thus:
In the case before me, the Prosecution has averred in Paragraph 4 (b)-(c) of the Counter Affidavit in the following terms:
4b. As a matter of fact, the sum of N30,000,000.00 was paid to PW1, Idowu Olusegun of Paste Poster Company, whose office address is at 159, Igbosere Road, Lagos.
4c. That Mr. Idowu Olusegun contracted by the Applicant and paid with the proceeds of the alleged offence.
These in my view are clear allegations that some act forming part of the offence or at least the consequence of it happened in Lagos. Only evidence would show the truth or otherwise of the allegations.
The implication of the above is that it cannot be rightly said that Lagos is not the proper place for the trial of the criminal matter leading to this appeal on the grounds that it is not the place of the commission of the offence.Another side of the argument raised by Appellants counsel is that Lagos is not a convenient forum as the Appellant, and his witnesses reside in Abuja, thus a proper defence in Lagos may be difficult. This is indeed a compelling argument, but the power to transfer is discretionary. The nature of the exercise of a discretionary power is basic and from the circumstances of this appeal, the trial Court did have legally sound reasons for refusing to remit the case to the Chief Judge for transfer, chiefly being the fact that part of the offence occurred in Lagos. I am therefore constrained from tampering with this exercise of the lower Courts decision.
See: Ogunsanya v. The State (2011) LPELR-2349(SC); Okorocha v. PDP & Ors (2014) LPELR-22058(SC); Iwayemi & Anor v. Akinbo (2016) LPELR-40136(CA).
The lower Court is not bound by the decision in Ibori’s case because the facts of that case is different from this one as the offences allegedly committed in that case all occurred in Delta State and had no nexus whatsoever with Abuja where the Prosecution sought to institute the action.
This issue is consequently resolved in favour of the 1st Respondent.
ISSUE TWO:
WHETHER HAVING REGARDS TO THE FACTS AND CIRCUMSTANCES OF THIS CASE IT CAN BE SAID THAT THE APPELLANTS RIGHT TO FAIR HEARING WAS BREACHED AND VIOLATED BY THE LOWER COURT IN DETERMINING THE APPELLANTS MOTION DATED 15TH MAY, 2017. (GROUND 3)
Learned counsel for the Appellant argued that the lower Court breached the Appellants right to fair hearing and fair trial by failing to consider and pronounce on the fact that it would be difficult for the Appellant to properly defend a case in Lagos, in contravention of Section 36(6)(b) of the Constitution and the Supreme Courts decision in Okoye v. C.O.P (2015) 17 NWLR (Pt. 1488) 276 @ 296, as the witnesses and documents he wants to rely on are closer to Abuja, there is a sister charge in Abuja and the Appellants bank accounts had been frozen by the 1st Respondent.
He relied on the cases of Egharevba v. Osagie (2009) 18 NWLR (Pt. 1179) 299 at 310-311, H-A; and Honeywell Flour Mills Plc v. Ecobank (Nig) Ltd (2016) LPELR-40221.
On the other hand, learned counsel for the 1st Respondent argued that the learned trial Judge only reached the decision that the Appellants application was lacking in merit after a consideration of all the facts and circumstances of the case, hence it cannot be rightly said that the Appellants fundamental right to fair hearing was breached.
He also submitted that the proceedings before the lower Court were conducted in line with the provisions of the ACJA 2015 and as such cannot be said to be a breach of Appellants fundamental right to fair hearing.
He relied on:
Bamaiyi v. State (2001) 8 NWLR (Pt. 715) 270 at 284; Uguru v. State (2002) 2 NWLR (Pt. 771) 90 at 105; and Audu v. FRN (2013) LPELR-19897 (SC) pp. 13-14, paras G-A.
In the reply brief, Appellants counsel submitted that the trial Judge ought to have given reasons for his decision and that he failed to properly examine the issue of how the Appellant coming from Abuja to Lagos would adversely affect his ability to defend the case.
RESOLUTION
There is no doubt that the issue of adequate facilities for defence on the part of an Accused person is an aspect of the fundamental right to fair hearing as enshrined in the grundnorm, the 1999 Constitution of the Federal Republic of Nigeria (as amended). It is therefore an issue that is of the utmost importance in the mind of the Court.
See: Shema & Ors v. FRN (2018) LPELR-43723(SC); Ugboji v. State (2017) LPELR-43427(SC); and Offor & Anor v. C.O.P Rivers State Police Command (2013) LPELR-21170(CA).
‘Learned counsel for the Appellant had submitted that the failure of the trial Court to pronounce on the issue constitutes a breach of Appellant’s right to fair hearing. Now while a Court has a duty to pronounce on all the key issues in a matter, it is not every failure of a Court to pronounce on issues that would constitute a breach of fundamental right to fair hearing.
See: C.N. OKPALA & SONS LTD v. NB PLC (2017) LPELR-43826(SC); FODE DRILLING (NIG) LTD v. FABBY & ORS (2017) LPELR-42822(CA); and SAIPEM CONTRACTING (NIG) LTD & ORS v. FIRS & ORS (2018) LPELR-45118(CA).
A careful examination of the ruling of the lower Court reveals that issue of transfer was mainly settled on the plank of the crime occurring in Lagos, thus the issue of convenience of the Appellant in defending the matter cannot truncate his trial in a place where the offence occurred.
This issue is also resolved in favour of the 1st Respondent.
In light of the above, the appeal fails and is consequently dismissed.
The Ruling of the lower Court delivered on 26th September, 2017 is affirmed.
MOHAMMED LAWAL GARBA, J.C.A.: I agree.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Jamilu Yammama Tukur, J.C.A., which I had the advantage of reading in draft.
Appearances:
Wale Balogun with him, O. F. AweFor Appellant(s)
Rotimi Oyedepo with him, Nnnemeka Omera for 1st Respondent.
R. I. Nkannebe for 2nd Respondent.For Respondent(s)
