MOSES SAMANJA AUDU v. FEDERAL REPUBLIC OF NIGERIA
(2018)LCN/11952(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of July, 2018
CA/K/278A/C/2017
RATIO
ACTION: LOCUS STANDI
“On the issue of the locus standi to raise the issue of consent of the Honourable Attorney-General of the Federation, it was submitted that an accused person has the locus standi to challenge the competence of a prosecutor to file an information or charge against him. The case of QUEEN V. AZU A. OWOH & 2 ORS (1962) 1 ALL NLR PART 11 p. 653 and that of SAMUEL CHIKE ONWUKA V. THE STATE (1970) ALL NLR PART 164 were cited in support.” PER OBIETONBARA O. DANIEL-KALIO, J.C.A.
COURT AND PROCEDURE: WHERE A DECISION IS PERVERSE
“A decision of a Court is perverse where (a) it is speculative and not based on any evidence or (b) the Court took into account matters which it ought not to have into account or (c) the Court shut its eyes to the obvious. See OSUJI V. EKEOCHA (2009) 16 NWLR PART 1166 p. 81.” PER OBIETONBARA O. DANIEL-KALIO, J.C.A.
JUSTICES
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
Between
MOSES SAMANJA AUDU Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
OBIETONBARA O. DANIEL-KALIO, J.C.A.: (Delivering the Leading Judgment):
The appeal before us is in respect of the judgment of the Federal High Court Kaduna Judicial Division in a criminal matter. The Appellant Moses Samanja Audu was arraigned along with Miriam Moses Ventures Ltd before the lower Court on a charge that read as follows:-
‘That you, Moses Samanja Audu and Miriam Moses Ventures Ltd sometime between 2010 and 2011 at Kaduna within the jurisdiction of the Federal High Court transacted banking business by receiving deposits from the public without a valid licence from the Central Bank of Nigeria and thereby committed an offence punishable under Section 2 (2) of the Banks and other Financial Institutions Act Cap 83 Vol. 2 Laws of the Federation of Nigeria, 2004’.
The Appellant pleaded not guilty to the charge. Seven (7) witnesses testified for the prosecution while 5 did for the defence. In the judgment of the lower Court delivered on 27/10/2016 by Evelyn N. Anyadike J, the Court made the following finding:-
”I note that all the above pieces of evidence by the prosecution witnesses were not contradicted nor discredited by the defence. Rather the DW1 corroborated the prosecution’s case when he stated that he invested N20,000.00 with the business and was paid N40,000.00 at the end of the month. I therefore am empowered to accept all these pieces of evidence. Again both the DW1, DW3 and the 1st accused person who testified as the DW5 admitted under cross-examination that the major business of the 2nd accused person was accepting deposits from people and paying back with 100% interest after 22 days. The 1st accused person also admitted not being licenced by the Central Bank of Nigeria to do such business.
My findings therefore are that the un-contradicted evidence of the prosecution witnesses coupled with Exhibits A and A1, B and B1, D1 – 92, H and P1 – 2 which is corroborated by the evidence of the DW1, 3 and 5 prove that the main business of the 2nd accused person is accepting deposits from the members of the public and paying principal sum plus 100% interest after twenty two (22) days. I find as a fact that the 2nd accused person advertised the business through distribution of fliers and also through human agents who solicited for such deposits from the public. I find that the 1st accused is the chief executive of the 2nd accused person and does not possess a valid license to operate a banking business. I find that the business of the 2nd accused person has features similar to a banking business as defined under the Act and it does not matter whether the deposits accepted by the 2nd accused person are tagged ‘current or savings’ accounts as the operative word under Section 66 of the Act is ‘other similar account’. Exhibit A1 – 2, B1 – 2, D1 – 92, E and H present all the features of deposit slips and other books of accounts kept by banks,”
Having found as reproduced above, the learned trial judge concluded that the Appellant and the Company charged with him as the 2nd accused were liable under Section 49 of the Banks and other Financial Institutions Act (hereinafter referred to as the BOFIA). The Court therefore found the Appellant guilty and sentenced him to five years imprisonment. The Court also made orders pertaining to forfeiture of money held in some named banks to the Federal Government of Nigeria for onward refund to eligible depositors.
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal dated 18/11/2016 which Notice of Appeal was later amended. The amended Notice of Appeal was filed on 17/4/18 but by an order of this Court deemed filed and served on 23/4/18. Five grounds of appeal were indicated in the said amended Notice of Appeal.
The parties exchanged Briefs of Argument. The Appellant’s amended Brief of Argument filed on 17/4/18, deemed properly filed and served on 24/4/18 was settled by Hassan U. El-Yakub Esq. The Respondent’s amended Brief of Argument settled by Joshua Saidi Esq was filed on 25/4/18. The Appellant filed an amended Reply Brief of Argument on 11/5/18.
In the Appellant’s amended Brief of Argument, the Appellant’s learned Counsel indicated that the Appellant was abandoning ground 4 of the grounds of appeal. The Appellant then distilled the following issues for determination out of the remaining grounds of appeal, viz
1. Whether the trial Court was right when it assumed jurisdiction to entertain this case which was brought by the Economic and Financial Crimes Commission, EFCC on behalf of the Respondent without obtaining the written consent of the Honourable Attorney-General of the Federation as required by the provisions of the Banks and other Financial Institutions Act Cap. 83 Laws of the Federation of Nigeria, 2004.
2. Whether the Respondent has discharged the burden of proving the charge against the Appellant beyond reasonable doubt as required by law.
The Respondent framed the issues for determination differently and as follows:-
1. Whether the EFCC requires the fiat of the Attorney-General of the Federation to file and prosecute any offence under the Banks and other Financial Institutions Act, 2004.
2. Whether from the totality of evidence adduced by the Respondent and the exhibits tendered in this case, it can be said that the prosecution has proved its case beyond reasonable doubt to warrant the conviction of the Appellant by the trial Court.
The difference between the issues as formulated by the Appellant and the Respondent can be likened to the difference between tweedledum and tweedledee. I will therefore consider the issues seriatim.
On the first issue which is whether the trial Court was right when it assumed jurisdiction to entertain this case which was brought by the EFCC on behalf of the Honourable Attorney-General of the Federation, as required by the provisions of the Banks and other Financial Institutions Act Cap. 133 Laws of the Federation of Nigeria, 2004, the Appellant?s learned Counsel submitted that the conviction and sentence of the Appellant was incompetent in view of non-compliance with the provision of Section 65 (3) of the BOFIA. The Section it was submitted states that no prosecution in respect of any offence under the Act shall be instituted without the consent in writing of the Attorney-General of the Federation. The word shall it was submitted denotes a command and does not admit or leave room for discretion.
The case of CORPORATE IDEAL INC. LTD. V. AJAOKUTA STEEL CO. LTD. (2014) 7 NWLR PART 1405 p.165 at 193 D was cited in support. It was submitted that Section 65 (3) of the BOFIA lays down as a pre-condition, the fiat or written consent of the Attorney-General of the Federation. An approval required to be in writing as provided for in a statute, learned Counsel submitted, cannot be presumed. The case of CORPORATE IDEALS INC. LTD V. AJAOKUTA STEEL CO. LTD. (Supra) was cited in support. It was also submitted that the written approval of the Honourable Attorney-General of the Federation having not been obtained by the EFCC before the prosecution of the Appellant a condition precedent for the exercise of the Court’s jurisdiction over the matter was missing and consequently, the lower Court lacked jurisdiction to hear and determine the matter. The case of NNAKWE V. THE STATE (2013) 7 SCNJ PART 1 p. 179 at 212 was cited in support.
In his argument in response, the Respondent’s learned Counsel submitted that the BOFIA just like the EFCC Act is an Act of the National Assembly and as such both the BOFIA and the EFCC Act enjoy the same status. It was submitted that Section 7 (1) (2) of the EFCC Act 2004 mandates the EFCC to enforce the provisions of certain laws including the BOFIA 1991. The EFCC Act in Section 13 (2) it was argued, mandates the Commission through its Legal Unit to prosecute offenders under the Act and therefore it is wrong to argue as the Appellant did, that the Respondent needs a fiat of the Honourable Attorney-General of the Federation to prosecute any offence under the BOFIA.
It was submitted that the power of the Honourable Attorney-General of the Federation to prosecute, take over or discontinue any case is a Constitutional one under Section 174 of the 1999 Constitution as amended and therefore Section 65 (3) of the BOFIA should be construed with Section 174 (1) of the Constitution in mind and that if that is done, the Court will arrive at the conclusion that the power to institute criminal action is not limited to the Honourable Attorney-General of the Federation alone but includes any other authority or person. The case of FEDERAL REPUBLIC OF NIGERIA V. OSAHON (2006) 5 NWLR PART 973 p. 261 at 405 and that of IKEDIGWE V. FEDERAL REPUBLIC OF NIGERIA (2010) NSCC 6 were cited in support.
The Respondent’s learned Counsel further submitted that the Appellant lacks the locus standi to raise the issue of lack of fiat of the Honourable Attorney-General of the Federation and that if a fiat was required, it is the Honouable Attorney- General of the Federation whose fiat is required that will have the locus standi to raise the issue and not the Appellant. It was submitted that at any rate, the time to raise the issue of a fiat is upon the arraignment of the Appellant and that the Appellant having participated in the proceedings has waived his right to complain on the issue.
Responding to the submissions of the Respondent, the Appellant’s learned Counsel argued in the Reply Brief that the powers given to the EFCC under Section 7 (1) and (2) and Section 13 (2) of the EFCC Act cannot override the express provisions of Section 65 (3) of the BOFIA under which the Appellant was charged. The said Sections 7 (1) (2) and 13 (2) of the EFCC Act it was submitted are not superior to Section 65 (3) of the BOFIA and cannot whittle it down. With regard to Section 174 (1) of the 1999 Constitution, it was submitted that the Section is irrelevant to the issue under consideration and that the section was cited out of con by the Respondent’s learned Counsel. From the submissions of the Respondent’s learned Counsel it was contended that the Respondent has conceded that it did not obtain the written consent of the Honourable Attorney-General of the Federation before instituting the charge against the Appellant as required by Section 65 (3) of the BOFIA.
On the issue of the locus standi to raise the issue of consent of the Honourable Attorney-General of the Federation, it was submitted that an accused person has the locus standi to challenge the competence of a prosecutor to file an information or charge against him. The case of QUEEN V. AZU A. OWOH & 2 ORS (1962) 1 ALL NLR PART 11 p. 653 and that of SAMUEL CHIKE ONWUKA V. THE STATE (1970) ALL NLR PART 164 were cited in support.
Now Section 65 (3) of the Banks and other Financial Institutions Act, 2004 provides:-
‘No prosecution in respect of any offence under this Act shall be instituted without the consent in writing of the Attorney- General of the Federation’.
Section 7 (2) of the Economic and Financial Crimes Commission Act provides:-
In addition to the powers conferred on the Commission by this Act, the Commission shall be the co-ordinating agency for the enforcement of the provisions of
(a) the Money Laundering Act 2004; 2003 No. 7, 1995 No. 13;
(b) the advance Fee Fraud and other Related Offences Act, 1994
(c) The Failed Banks (Recovery of Debt) and Financial Malpractices in Banks Act, as amended
(d) The Banks and other Financial Institutions Act, 1991 as amended
(e) The Miscellaneous Offences Act; and
(f) Any other law or regulation relating to Economic and Financial Crimes, including the Criminal Code and the Penal Code.
From Section 7 (2) of the EFCC Act reproduced above, it is very clear that the role of the EFCC with regard to the Banks and other Financial Institutions Act as well as the other Acts and laws enumerated is that of coordinating the enforcement of the Act and Codes enumerated. It thus means that in the case of the Banks and other Financial Institutions Act the role of the EFCC is to coordinate the enforcement of the Act which of course includes the provision of Section 65 (3) of the Act. It further means that with regard to the Banks and other Financial Institutions Act the EFCC is required in order to coordinate its enforcement, seek the written consent of the Attorney-General of the Federation as required by Section 65 (3) of the Act before prosecuting any offence under the Act. Section 7 (2) of the EFCC Act therefore does not do away with the provision of Section 65 (3) of the BOFIA rather it employs it as a mechanism to perform its function in Section 7 (2) of the EFCC Act. Put in another way, the door to the Court for the prosecution of offences under the BOFIA by the EFCC is not an open and direct door. The EFCC has to branch to the office of the Attorney-General of the Federation for his consent before it can expect the door to the Court to be open to it.
The Respondent’s learned Counsel referred to Section 174 (1) of the 1999 Constitution and submitted that Section 65 (3) of the BOFIA should be construed with that constitutional provision in mind. Section 174 of the Constitution gives wide power to the Attorney-General of the Federation to superintend over the prosecution of cases in Court. To that end, the Attorney-General of the Federation has power to institute and undertake criminal proceedings against any person before any Court of law in Nigeria other than a Court martial, in respect of any offence created by or under any Act of the National Assembly; take over and continue any such criminal proceedings that may have been instituted by any authority or person; and discontinue at any stage before judgment is delivered in any such criminal proceedings instituted or undertaken by him or any other authority or person. By subsection (2) of Section 174 of the Constitution, the power conferred upon the Attorney-General of the Federation under subsection (1) may be exercised by him in person or through officers of his department. Section 65 (3) of the BOFIA is therefore in full harmony with the powers of the Attorney- General of the Federation in Section 174 of the Constitution.
The reference to Section 174 of the Constitution by the Respondent therefore offers no help whatsoever to its case.
Clearly the EFCC got ahead of itself when it charged the Appellant to Court without first obtaining the consent of the Attorney-General of the Federation. Having rushed to Court to charge the Appellant for a crime under the BOFIA without complying with the provision of the BOFIA in Section 65 (3),the EFCC neglected a condition precedent for filing the action and thereby created a situation in which the lower Court was deprived of the required jurisdiction to hear and determine the case. Where a precondition for instituting an action has not been satisfied, the action is premature and the Court will lack the requisite jurisdiction to hear and determine the case. See ADESOLA V. ABIDOYE (1999) 14 NWLR PART 637 p. 28; (1999) LPELR 153 (SC).
Issue 2 as will be recalled is whether the Respondent has discharged the burden of proving the charge against the Appellant beyond reasonable doubt as required by law.
On this issue, the Appellant’s learned Counsel noted that the offence for which the Appellant was charged with, convicted and sentenced was brought under Section 2 (2) of the Banks and other Financial Institutions Act. It was contended that in order to secure a conviction, it must be proved beyond reasonable doubt that:-
(1) The accused person transacted banking business; and
(2) The accused person transacted the banking business without a valid licence from the Central bank of Nigeria.
Learned Counsel referred to Section 66 of the BOFIA on the definition of banking business and submitted that the Appellant cannot be said to have been engaged in banking business. Learned Counsel referred to the finding of the trial Court and submitted that the Court did not give the provision of Section 66 of the BOFIA its natural or literal meaning.
It was submitted that Section 2 of the BOFIA and the meaning of banking business under Section 66 of the BOFIA were considered by this Court in the case of GATEWAY HOLDINGS LTD. V. S.A.M. & T LTD (2006) 9 NWLR PART 1518 p. 490 at p. 508. The lower Court it was submitted, did not properly construe the provision of Section 2 (2) of the BOFIA. The lower Court it was also submitted, held the view that the mere fact that the Appellant and the company with which he was charged were engaged in the act of receiving deposits from the general public and advertised their business meant that they were caught by the provision of Section 2 (2) of the BOFIA and were guilty as charged. The purpose of the BOFIA it was contended was not to prevent businesses from collecting deposits from the public for the purpose of investment. We were urged to be persuaded by the decision of the Federal High Court in the case of ATTORNEY-GENERAL OF THE FEDERATION V. EKPA (1976 – 1984) 3 (NBLR) 173.
Learned Counsel contended that the lower Court did not perform its primary duty of properly evaluating the evidence before it and ascribing probative value to same before making its findings and conclusions. This, it was submitted, led to perverse findings. The Appellant’s learned Counsel finally submitted that the lower Court did not make any pronouncement on the defence presented by the Appellant and the failure to do that occasioned a miscarriage of justice.
In his argument in response, the Respondent’s learned Counsel referred to the definition of banking business in Section 66 of the BOFIA. It was submitted that if the definition is considered alongside Section 1 (5) of the BOFIA it will be clear that the Respondent proved the features of banking activities as Exhibits A, A1, B, B1, D1 – 92 and P1 – 2 showed that the main business of the Appellant was to collect cash deposits from members of the public and pay 100% on the deposits after 21 working days. We were also referred in particular to the evidence of PW5. It was also contended that the evidence of DW3, DW4 and DW5 under cross-examination corroborated the evidence of the Respondent’s witnesses. It was submitted that the learned trial judge evaluated and considered the evidence of the parties.
Now in arriving at its decisions, the lower Court reasoned thus:-
‘I find that the business of the 2nd accused person presents features similar to a banking business? as defined under the Act and it does not matter whether the deposits accepted by the 2nd accused are tagged ‘current or savings’ accounts as the operative word under Section 66 of the Act is ?or other similar account’.
Exhibits A1 – 2, B1 – 2, D1 – 92, E and H present all the features of deposit slips and other books of accounts kept by banks”.
Now Section 66 of the BOFIA defines ”banking business” thus- “banking business” means the business of receiving deposits on current account, savings account or other similar account, paying or collecting cheques drawn by or paid in by customers, provisions of finance or such other business as the Governor may, by order published in the gazette, designate as banking business.
Section 2 (2) of the BOFIA provides:-
”Any person who transacts banking business without a valid license under this Act is guilty of an offence and liable on conviction to imprisonment for a term not exceeding 10 years or to a fine of N2,000,000.00 or to both such fine and imprisonment”.
The evidence before the lower Court by PW1 and PW2 was that they deposited money with the Appellant’s co-accused with the hope and expectation that they would receive double the amount deposited between 22 to 30 days after the deposit. Their evidence also was that upon the deposits made by them they were given receipts. Under cross-examination, PW1 stated that she did not have any savings or current account with the Appellant’s co-accused. PW2 under cross-examination also stated that she was not made to open any account like a savings account or a current account. PW4 was an agent of the Appellant’s co-accused. She testified that she collected money from members of the public on behalf of the Appellant’s co-accused and that she issued receipts to those from whom she collected money. She also testified that the money she collected was deposited in the Appellant?s co-accused’s Company account. Under cross-examination, PW4 stated that there was nothing like deposit or withdrawal slips as are used in banks.
From the evidence of PW1 and PW2 who deposited money, all that they received were receipts. There was no current account, savings account or any such account opened for them. The definition of ‘banking business’ according to BOFIA as earlier reproduced, is the business of receiving deposits on current account, savings account or other similar account.
The Merriam-Webster Dictionary defines an account as relates to banking as an arrangement in which a bank keeps record of the money that a person puts in and takes out of the bank?. There was no evidence before the lower Court that there was an arrangement whereby the Appellant kept a record of the money put in and taken out by depositors. It follows therefore that what the Appellant was involved in was not a banking business. That being the case the decision of the lower Court that found the Appellant guilty under Section 2 (2) of the BOFIA, 2004 was perverse. The lower Court ignored the fact that there was no evidence of a current account, savings account or other similar account before it.
A decision of a Court is perverse where (a) it is speculative and not based on any evidence or (b) the Court took into account matters which it ought not to have into account or (c) the Court shut its eyes to the obvious. See OSUJI V. EKEOCHA (2009) 16 NWLR PART 1166 p. 81.
To rightly convict the Appellant, there ought to have been evidence before the lower Court showing that the Appellant was in the business of receiving deposits on current account, savings account or other similar account. There was no such evidence before the lower Court. The result is that the appeal has merit and is allowed. The judgment of the lower Court is hereby set aside together with the conviction and sentence of the Appellant. The Appellant is discharged and acquitted.
IBRAHIM SHATA BDLIYA, J.C.A.: I read before now, a draft copy of the leading judgment just delivered by my lord, AMINA AUDI WAMBAI, J.C.A. I am in full agreement with the reasonings and decision arrived at in dismissing the appeal for lacking in merit. I have nothing useful to add to the erudite judgment, other than to adopt the reasonings of my lord, WAMBAI J.C.A., with profound gratitude and to also dismiss the appeal for being unmeritorious. I abide by the order made in the leading judgment.
AMINA AUDI WAMBAI, J.C.A.: I agree.
Appearances:
Hassan U. El-Yakub Esq.For Appellant(s)
Joshua Saidi Esq.For Respondent(s)
Appearances
Hassan U. El-Yakub Esq.For Appellant
AND
Joshua Saidi Esq.For Respondent
