NNACHI EPHRAIM v. FEDERAL REPUBLIC OF NIGERIA (2012)

NNACHI EPHRAIM v. FEDERAL REPUBLIC OF NIGERIA

(2012)LCN/5815(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 10th day of July, 2012

CA/K/C/312/2010

RATIO

JURISDICTION: WHEN WILL A STATE HIGH COURT BE COMPETENT TO ASSUME JURISDICTION

In Nyame vs. FRN (2010) CLR 3(b), the Supreme Court noted that the Law which deals with venue for the trial of offence committed in the States in Nigeria is Section 64 of the Criminal Procedure Act, Cap.80 Laws of the Federation of Nigeria, 1990, but, the law which regulates the territorial jurisdiction of the trial Court i.e., High Court of Federal Capital Territory, Abuja, is Section 4 of the Penal Code Cap. 532 Laws of the Federation, 1990. It further expressed that the two different categories of offences to be charged before the Federal Capital Territory High Court Abuja, are specified under Section 4(2)(a) and (b) of the Penal Code. From the provisions of Section 4 of the Penal Code Act, some of the elements of the offences charged must occur in Abuja before the High Court in Abuja can assume jurisdiction. Once one of the elements of the offence or offences happens in a particular State, the High Court of the State would be competent to assume jurisdiction. The Supreme Court made reference to Njovens & Ors vs. The State (1973) ALL NLR page 371 and opined that ‘whenever the issue of the venue of the trial of an accused comes for determination, the most appropriate way of resolving the issue is to identify the offences charged and the element of the same as contained in the proof of evidence with a view to determining whether any of the acts constituting the offences occurred in the particular place where the accused is being tried. (underlined for emphasis). It stated that in the case of Njovens & Ors vs. The State (1973) ALL NLR page 371, the provision of Section 4(2) of the Penal Code was illustrated as follows:

“On a charge of abatement of an offence the initial element is the instigation or positive act or omission which constitutes the offence. In this case, the initial element took place outside Kwara State, but the commission of the act of abatement which is an element of a charge under Section 85 of the Penal Code (as opposed to Section 91) took place in Kwara State and on the evidence, the Defendants were apprehended in that State. They were therefore properly tried in that State.” PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.

CRIMINAL LAW: WHEN WILL A PERSON BE GUILTY UNDER SECTION 13(1)(A) OF THE ADVANCE FEE FRAUD AND OTHER FRAUD RELATED OFFENCES ACT 2006

For a person to be guilty under Section 13(1)(a), the person must in the normal course of business, provide telecommunications or internet services, or must be the owner or the person in the management of any premises being used as a telephone or internet cafe or by whatever name called. I must observe that the fact that the signboard of primegate cyber cafe is posted at No. 1 Okpara Street, Abakaliki notwithstanding, there must be some overt act on the part of the owner of the cybercafe to prove that he actually provides telecommunications or internet services to the public. There was no shred of evidence adduced by the prosecution establishing that Primegate Cybercafe was indeed providing telecommunications and internet services at No. 1 Okpara Street Abakaliki. The fact that the signboard of Primegate is hanging thereat does not constitute any proof that the said cybercafe was providing any internet services at the said address. I think, the saying; ‘the hood does not make the monk’ suits appropriately here. All the documents tendered before the lower Court profoundly showed that it was Artifice Colony cybercafe that was indeed providing both the telecommunication and internet services at No. 1 Okpara Street, Abakaliki and not Primegate. P.W.1 admitted that no investigation was carried out by the EFCC to decipher whether Primegate Cybercafe was indeed taken over by Artifice Colony Cybercafe or not. They did not obtain the tickets and receipts normally issued to customers to strongly establish that it was Prime gate Cybercafe that was running the said business. The question is; ‘if there was no proof that Prime gate was indeed offering any internet or telecommunication services, where then lies the offence?’ It is only when the cyber cafe or a person is offering the services enumerated in Section 13(1)(a) of the Advance Fee Fraud And Other Fraud Related Offences Act, 2006 that the person or the entity is required in law to register the same. A moribund or defunct company, whose signboard is still hanging out on its former business address without any iota of proof of it running any business thereat, cannot be said to be carrying out the same services it had wound up, merely because of the continued display or affixation of its signboard at its former business address. It is not an offence to display a signboard, but, it is an offence to carry out such internet or telecommunication services or being the owner or person in the management of any premises being used as a telephone or internet cafe without registration of the cyber cafe. There must be proof of usage of the place as a telephone or internet cafe. This was lacking in the evidence proffered by the prosecution in the instant case. It is glaring that the judgment of the lower Court was not properly guided in line with principles of law. The Court terribly erred. Accordingly, I find the decision of the lower Court as being perverse. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.

Before Their Lordships

ABDU ABOKIJustice of The Court of Appeal of Nigeria

AHMAD OLAREWAJU BELGOREJustice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUAJustice of The Court of Appeal of Nigeria

Between

NNACHI EPHRAIMAppellant(s)

AND

FEDERAL REPUBLIC OF NIGERIARespondent(s)

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): By the criminal charge dated the 25th June 2008, the Appellant was arraigned before the Federal High Court sitting at Kaduna in the following terms:

“That you Nnachi Ephraim on or about the 4th day of April, 2008 at Prime Gate Cybercafe, 1 Okpara Street, Abakaliki, Ebonyi State within the jurisdiction of the Federal High Court, being the Manager of Prime Gate Cybercafe failed to register the Cybercafe with the Economic Financial Crimes Commission and thereby committed an office contrary to Section 13(1)(a) and punishable under Section 13(5) (c) of the Advance Fee Fraud And other Fraud Related Offences Act, 2006.”

A trial was conducted as a result and, one witness each, testified on behalf of the Appellant and Respondent respectively. At the conclusion of the trial, the trial Court found the Appellant guilty. Following the pronouncement, the Appellant filed this Appeal which he based on six Grounds of Appeal. After compilation and transmission of the Record of Appeal, and service of the same on the parties, they proceeded to file their respective Briefs of Argument. The Appellant, in his Brief, presented three issues for consideration in this appeal. They are as follows:

“1. Whether the trial and conviction of the Appellant was not a nullity for want of jurisdiction.

2. Whether the offence for which the Appellant was tried and convicted was not at variance with the offence created and punishable under Section 13(1)(a) and (5)(c) of the Advance Fee Fraud And Other Fraud Related Offences Act, 2006.

3. Whether the verdict of the lower Court was not perverse.”

The Respondent adopted the issues formulated by the Appellant for determination in this Appeal.

In respect of issue No. 1, the learned Senior Counsel for the Appellant, Dr. J.O. Ibik, SAN; in the Appellant’s Brief of Argument, adopted before this Court by M.C. Okonkwo Esq; explained that the venue of the alleged offence as shown in the charge is “Prime Gate Cybercafe, at No. 1 Okpara Street, Abakaliki Ebonyi State. He stated that the geographical area of Kaduna State is different from that of Ebonyi State as enshrined in Section 3(1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria. He argued that by Section 251(1) of the 1999 Constitution, Section 45(a) of the Federal High Court Act, Cap F12 Volume 6 of the Laws of the Federation of Nigeria and Section 64 of the Criminal Procedure Act, Cap C41, Vol 4 of the Laws of the Federation of Nigeria, 2004, the jurisdiction and competence of any Judge of the Federal High Court is confined to causes and matters arising within the territorial Division to which the Judge is posted, which is subject to a formal order of assignment of extra-territorial cause or matter by the chief Judge of the Federal High court.

He emphasised that adjudication without jurisdiction or competence is a nullity and must be set aside on appeal, however well-conducted. He relied on Maduabuchukwu vs. Maduabuchukwu (2006) All FWLR Part 318 page 695; Minister of Federal Capital Territory and another vs. Abdullahi & Ors (2010) ALL FWLR 179 at 193-194 paragraphs H-D and Bronik Motors Ltd vs. Wema Bank Ltd (1983) NSCC 226 at 231 (18 – 22) in support. Learned Senior Counsel submitted that by virtue of Section 14 of the Advance Fee Fraud And Other Fraud Related Offences Act, 2006, the jurisdiction to try offence under the Act is vested in the Federal High Court, High Court of the Federal Capital Territory and the State High Courts. He made reference to Ibori vs. Federal Republic of Nigeria (2009) ALL FWLR Part 487 159 at pages 189 paragraphs D-E, and 191 – 192 paragraphs F-G, and contended that by charging the Appellant before the Kaduna Division of the Federal High Court when the offence was allegedly committed in Ebonyi State, the prosecution embarked upon forum hunting. He stated it was an exercise in futility in trying the Appellant in the Kaduna Division for an offence not committed within its territorial jurisdiction. The Learned Senior Counsel also pointed out that since this issue borders on jurisdiction, it can even be raised for the first time on appeal without leave. On this, he placed reliance on the case of Minister of Federal Capital Territory & anor vs. Abdullahi & Ors (2010) ALL FWLR Part 179 at pages 193 – 194 paragraphs H-D. He, then, urged this Court to resolve issue No.1 in favour of the Appellant.

Regarding issue No.2, the learned Senior Counsel strongly contended that the requisite criminal intent required for commission of the offence was not proven by the prosecution. He referred to the Appellant’s testimony as P.W.1 where he clearly stated that the premises is used as a cyber cafe that there was no concealment of any kind as to what is being carried out thereat, and then submitted that the trial Court was in error when it failed to acquit and discharge the Appellant for the offence charged. He turned to the provisions of Section 13(5) (c) of the Advance Fee Fraud And Other Fraud Related Offences Act, 2006 and the cases of Orhiunu vs F.R.N (2005) 1 NWLR Part 906 page 39, River State Government vs. Specialist Consult (2005) 7 NWLR Part 923 page 145 and Ibori vs. Ogboru (2005) 6 NWLR Part 920 page 162, the dictum of the lower Court at page 52 lines 14 – 23 of the record, the cases of the State vs. Usman (2005) 1 NWLR Part 906 page 80 at pages 161 paragraphs A-B, and 137 paragraph G; Adamu vs. The State (1991) 4 NWLR Part 187 page 530, Okeke vs. The State (1999) 2 NWLR Part 590 page 240 and Shande vs. The State (2005) 12 NWLR Part 939 page 301 at pages 320-321, paragraphs H-A, and submitted that it is the duty of the Court to interpret each provision of the law or statute by giving it, its plain and grammatical meaning.

He emphasized that the lower Court was in error when it held that:

“the provision of Section 13(1)(a) of the Advance Fee Fraud And Other Fraud Related Offences Act, under which the accused was charged deals with the duties of telecommunication and internet services providers…. to inter alia have same registered with the Economic and Financial Crimes Commission, failure of which constitute (sic) an offence punishable under sub Section (sic) (5) and (6) of Section 13 of the Act.”

He explicated that failure to register simpliciter does not constitute an offence punishable under Section 13(5)(c) of the Advance Fee Fraud And Other Fraud Related Offences Act. He stressed that it is the responsibility of the prosecution to prove beyond reasonable doubt all the ingredients of the statutory offence charged, but which the prosecution failed to discharge in the instant case, which in all circumstances entitled the accused to acquittal. He then submitted that the conviction of the Appellant is, therefore, perverse and ought to be quashed. He, once again, highlighted that the offence for which the Appellant was tried and convicted as shown in the charge sheet and established on the evidence before the lower Court is at variance with the offence created by the statute pursuant to which the Appellant was charged and tried. Counsel, therefore, persuaded that issue No. 2 be resolved in favour of the Appellant.

Dealing with issue No.3 which is ‘whether the verdict of the lower Court was not perverse’, the learned Senior Counsel asserted that there is no burden whatsoever placed on an accused person to establish his innocence, except there is a express provision of the law requiring the same. He relied on Shande vs. The State (supra) in support. He contended that the provisions of Section 13(1)(a) and 5(c) of the Advance Fee Fraud And Other Fraud Related Offences Act, 2006 does not contain such an exception. The learned Senior Counsel quoted some excerpts from the judgment of the lower Court at page 50 lines, 7, 16 to 52 of the record and stressed that there is the unchallenged testimony of D.W.1 at page 36 lines 2 to 5 of the record showing that Artifice colony Nigeria Ltd owns and operates a cyber cafe at No. 1 Okpara Street, Abakaliki. He, also, referred to page 39 lines 14 – 16 where D.W.1 stated that when Artifice Colony was incorporated in 2005, he, D.W.1, took over prime Gate Cyber cafe, meaning that on 4th April, 2008, only Artifice Colony cyber cafe was operating. The Learned Counsel further argued that by the prosecution withholding the analysis report, the Appellant is entitled to the presumption under Section 149(d) of the Evidence Act that the report exonerated the Appellant vis-a-vis the alleged operation of Primegate Cybercafe at the locus in quo as charged. He argued that the provisions of Section 138(3) of the Evidence Act has no relevance to the facts of this case because of the uncontradicted testimony of D.W.1 and Exhibits C, D- L. He urged this Court to resolve issue No.3 in favour of the Appellant and then set aside the verdict of conviction and sentence passed on the Appellant by the lower Court.

In the argument proffered on behalf of the Respondent in respect of issue No.1, learned counsel for the Respondent, Mrs. O. M. Oke strongly contended that considering the decision in Abiola vs. F.R.N (1995) 3 NWLR Part 382 page 203, the territorial jurisdiction of the Federal High Court is not determined only by the provisions of Sections 19 and 45 of the Federal High Court Act, but, also, by the provisions of Sections 64 – 71 of the Criminal Procedure Act. She reproduced the provisions of Sections 19 and 45 of the Federal High Court Act and further leaned on the decision in Ugwu vs. Ararume (2007) 12 NWLR Part 1047 page 367 at 438 per Tobi, J.S.C and submitted that Sections 19 and 45 of the Federal High Court did not divest the Federal High Court, Kaduna Division of the jurisdiction to entertain the criminal charge filed before it by the prosecution. He stated that Section 45 of the Federal High Court Act deals with venue of trial of offences, and that determination of the issue of venue only relates to the administrative jurisdiction of the Court which is not at stake, as the Judicial Divisions were merely created for convenience. She asserted that Section 45 of the Federal High Court Act is in pari materia with Section 64 of the Criminal Procedure Act, and that Section 33(1) of the Federal High Court Act empowers the Court in exercising its criminal jurisdiction to apply substantially, the Criminal Procedure Act. Learned Counsel argued that Section 45 of the Federal High Court Act is not in conflict with Sections 64-69 and 70 – 71 of the Criminal Procedure Act. Counsel further asserted that the Federal High Court has power to assume jurisdiction under Sections 70 and 71 of the Criminal Procedure Act, and to try an accused person for an offence alleged to have been committed in another Judicial Division. She contended that by the decision in Abiola vs. FRN (supra) the combined provisions of Section 230(1)(a) and 231 of the 1979 Constitution, Sections 19(1) and 45 of the Federal High Court Act and Sections 64, 70 and 71 of the Criminal Procedure Act, are to the effect that the Abuja Judicial Division of the Federal High Court Act was competent to try the Appellant. Counsel said that the aforementioned pronouncement in Abiola vs. F.R.N (supra) was not based on the fact that Abiola was facing a treasonable charge but on clear interpretation of the provisions of Sections 19, 33 and 45 of the Federal High Court Act vis-a-vis the provisions of Sections 64 – 71 of the Criminal Procedure Act. It was stated therein that the provisions of Section 45 of the Federal High Court Act should not be read in isolation while considering the issue of venue. She cited the case of Usman vs. Umaru (1992) 7 NWLR Part 254 page 377 at 398 per Ogundare, J.S.C, and asserted that this Court is bound to follow its previous decision in Abiola vs. F.R.N (supra) except in circumstances specified in Young vs. Bristol Aeroplane Co. Ltd (1944) 2 ALL E.R 293 at 300. Counsel explained that the first exception created in Usman vs. Umaru (supra) is applicable to the instant appeal and she urged this Court to follow its decision in Abiola vs. F.R.N other than the one in Ibori vs. State. She further stated that there is only one Federal High Court for the Federation which was established by Section 249 of the 1999 Constitution of the Federal Republic of Nigeria. Counsel further cited the cases of Ukpai vs. Okoro (1983) 2 SCNLR 360 at 388, Ogige vs. Obiyan (1997) 10 NWLR Part 524 page 179 at 192, Patrick Njovens vs. The State (1973) NSCC 257 at 271 – 273 per Coker, J.S.C, Section 4(2)(b) of the Penal Code, and Section 19 of the EFCC Act which says that the Federal High Court has jurisdiction to try offenders under the Act, and, then urged this Court to hold that the Kaduna Division of the Federal High has the jurisdiction to entertain the offence for which the Appellant was charged.

Dealing with issue No. 2, Learned Counsel reproduced the provisions of Sections 13(1)(a) and 13(5) of the Advanced Fee Fraud And Other Fraud Related Offences Act, 2006 and stated Section 13(5) is the general punishment Section for the offences committed under Section 13 of the Act. She submitted that Section 13(1) of the Act imputes knowledge in the absence of actual knowledge. He stated that the charge is cognisable under the law and that it was not at variance with the law creating the offence.

On issue No. 3, Learned Counsel restated the ingredients that the prosecution must prove to secure a conviction, that is to say; (1) that the accused was in management or control of the premises being used as an internet cafe or by whatever name it is called; and (2) that the said internet cafe was not registered with the Economic And Financial Crimes Commission. She referred to the testimony of P.W.1 at pages 27 to 31 of the record and submitted that the prosecution has discharged the onus of proof placed on it by the law and, the principle, also, stated in Bakare vs. The State (1987) NSCC page 267 at 273 and Esangbede vs. The State (1989) NWLR Part 113 page 57 at 69, per Nnaemeka-Agu, J.S.C. She also made reference to the evidence of D.W.1 under cross-examination at page 40 of the record and commented on the Appellant’s failure to tender the letter evidencing the takeover of Primegate by Artifice Colony if indeed the said letter truly exists. Learned Counsel then urged this Court to dismiss this Appeal.

The first issue postulated by the Appellant for consideration by this Court is ‘whether the trial and conviction of the Appellant was not a nullity for want of jurisdiction. The facts of this case portrayed that every aspect and ingredient of the offence for which the Appellant was charged under Section 13(1)(a) and punishable under Section 13(5)(c) of the Advanced Fee Fraud And Other Fraud Related Offences Act, 2006, before the Federal High Court, Kaduna Division took place in Ebonyi State. It is the contention of the Appellant that he ought not to have been charged before the Federal High Court, Kaduna Division since the said Division does not possess the territorial jurisdiction to try him. He relied on Sections 19 and 45 of the Federal High Court Act and the case of Ibori vs. The State (supra). The Respondent strongly challenged the argument on the basis of the decision in Abiola vs. FRN (supra).

It is, therefore, necessary at this juncture to reproduce and dissect the provisions of Sections 19 and 45 of the Federal High Court Act and the cases of Ibori vs. The State (supra) and Abiola vs. FRN (supra) so as to appreciate the points being flaunted and demonstrated by respective Counsel for the parties.

Section 19 of the Federal High Court Act provides as follows:
“19.(1) The Court shall have and exercise jurisdiction throughout the Federation, and for that purpose the whole area of the Federation shall be divided by the Chief Judge into such number of Judicial Divisions (not less than four) as he may, from time to time, specify and he may designate any such Judicial Division or part thereof by such name as he may think fit.
(2) For the more convenient dispatch of business, the Court may sit in any one or more Judicial Divisions as the Chief Judge may direct, and he may also direct one or more Judges to sit in any one or more of the Judicial Divisions.
(3) The chief Judge shall determine the distribution of the business before the Court amongst the Judges thereof and may assign any judicial function to any Judge or Judges or in respect of a particular cause or matter in a Judicial Division.
(4) Subject to the directions of the Chief Judge, every Judge of the Court shall sit for the trial of civil and criminal causes or matters and for the disposal of other legal business pending at such places in the Federation and at such times as the Chief Judge may think fit.”
Then Section 45 of the same Act went further to state:
“45. Subject to the power of transfer contained in this Act, the place for the trial of offences shall be as follows-
(a) an offence shall be tried by a Court exercising jurisdiction in the area or place where the offence was committed; or
(b) when a person is accused of the commission of any offence by reason of anything which has been omitted to be done, and of any consequence which has ensued, such offence may be tried by a Court exercising jurisdiction in the area or place in which any such thing has been done or omitted to be done, or any such consequence has ensued; or
(c) when an act is an offence by reason of its relation to any other act which is also an offence, a charge of the first mentioned offence may be tried by a Court exercising jurisdiction in the area or place either in which it happened, or in which the offence with which it was so connected happened; or
(d) when-
(i) it is uncertain in which of several areas or places an offence was committed, or
(ii) an offence is committed partly in one area or place and partly in another, or
(iii) an offence is a continuing one and continues to be committed in more areas or places than one, or
(iv) an offence consists of several acts committed in different areas or places, such offence may be tried by a Court exercising jurisdiction in any of such areas or places; or
(e) an offence committed while the offender is in the course of performing a journey or voyage may be tried by a Court in or into the area or place of whose jurisdiction the offender or person against whom or the thing in respect of which the offence was committed resides, is or passed in the course of that journey or voyage.”
It is important to note the phrase in Section 45 thus:
“subject to the power of transfer contained in the Act.”
What then did the Act say about “power of transfer?” This is not far-fetched, as it could be gleaned from the provisions of Section 22 of the Act, which says:-
“22.(1) A Judge of the Court may at any time or at any stage of the proceedings in any cause or matter before final judgment, either with or without application from any of the parties thereto, transfer such cause or matter before him to any other Judge of the Court.
(2) No cause or matter shall be struck out by the Court merely on the ground that such cause or matter was taken in the Court instead of the High Court of a State or of the Federal Capital Territory, Abuja in which it ought to have been brought, and the Judge of the Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate High Court of a State or of the Federal Capital Territory, Abuja in accordance with Rules of Court to be made under Section 44 of this Act.
(3) Notwithstanding anything to the contrary in any law, no cause or matter shall be struck out by the High Court of a State or of the Federal Capital Territory, Abuja on the ground that such cause or matter was taken in the High Court instead of the Court, and the Judge before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate Judicial Division of the Court in accordance with such rules of court as may be in force in that High Court or made under any enactment or law empowering the making of rules of court generally which enactment or law shall by virtue of this sub-section be deemed also to include power to make rules of court for the purposes of this Sub-section.
(4) Every order of transfer made pursuant to sub-section (2) or (3) of this Section shall operate as a stay of proceedings before the court before which such proceedings are brought or instituted and shall not be subject to appeal.
(5) Where the court to which any cause or matter has been transferred pursuant to sub-section (2) or (3) of this Section is of opinion that the cause or matter ought in law to be dealt with by the court which transferred the cause or matter, the Judge presiding in the first mentioned court shall after hearing counsel on behalf of the parties state a case on a point oil law for the opinion of the Court of Appeal.
(6) Where any case on a point of law is stated for the opinion of the Court of Appeal, the Court of Appeal shall, in accordance with rules applicable in that court, give its decision upon the case and the court which stated the case shall dispose of the cause or matter accordingly. Proceedings to be disposed of by single Judge.”
What this postulates is that when it pertains to transfer of cases, Section 22 of the Act has an over-riding effect on Section 45 of the said Federal High Court Act. It is dependent and subordinate to Section 22 of the Act. However, Section 22 deals with transfer of a suit, but this issue queries the jurisdiction of the Kaduna Division of the Federal High Court to try the Appellant who was alleged to have committed the offence in question within the Enugu Judicial Division of the Federal High Court.
Perusing Section 19 of the Federal High Court Act, it says that for the purpose of the Federal High Court exercising jurisdiction throughout the Federation, the whole area of the Federation shall be divided by the Chief Judge into such number of Judicial Divisions (not less than four) as he may, from time to time to specify. Sub-section (4) says that “subject to the directions of the Chief Judge, every Judge of the Court shall sit for the trial of civil and criminal causes or matters and for the disposal of other legal business pending at such places in the Federation and at such times as the chief Judge may think fit. Then Section 45(a) emphatically and specifically provided that an offence shall be tried by a Court exercising jurisdiction in the area or place where the offence was committed.
In the instant Appeal, it is certain that the offence for which the Appellant was charged was allegedly committed wholly in Ebonyi State. It was not partly committed in Kaduna State, nor was it said to be a continuing one and continued to be committed in more areas or places than one nor an offence that consists of several acts committed in difference areas or places. By Section 45(d), it is clear that only a part of an offence has to be committed in another Judicial Division of the Federal High Court to enable the Federal High Court in that other Division assume jurisdiction when the accused is charged.

The Learned Counsel for the Respondent tenaciously held on to the provisions of Sections 64, 70, and 71 of the Criminal Procedure Act. They stipulate as follows:
“64. Subject to the powers of transfer contained in the Act or Law constituting any court, the place for the trial or investigation of offences by such court shall be-
(a) an offence shall be tried or inquired into by a court having jurisdiction in the division or district where the offence was committed;
(b) when a person is accused of the commission of any offence by reason of anything which has been done, or of anything which has been omitted to be done, and of any consequence which has ensued, such offence may be tried or inquired into by a court having jurisdiction in the division or district in which any such thing has been done or omitted to be done, or any such consequence has ensued;
(c) when an act is an offence by reason of its relation to any other act which is also an offence, a charge of the first mentioned offence may be tried or inquired into by a court having jurisdiction in the division or district either in which it happened, or in which the offence, with which it was so connected happened;
(d) (i) when it is uncertain in which of several divisions or districts an offence was committed; or
(ii) when an offence is committed partly in one division or district and partly in another; or
(iii) when an offence is a continuing one, and continues to be committed in more divisions or districts than one; or
(iv) when it consists of several acts committed in different divisions or districts, it may be tried or inquired into by a court having jurisdiction in any of such divisions or districts;
(e) an offence committed while the offender is in the course of performing a journey or voyage may be tried or inquired into by a court in or through or into the division or district of whose jurisdiction the offender or the person against whom or the thing in respect of which the offence was committed resides, is or passed in the course of that journey or voyage;
(f) an offence committed at sea or elsewhere out of Nigeria, which according to law may be tried or inquired into in Nigeria, may, subject to the provisions of Section 58 of this Act, be so tried or inquired into at any place in Nigeria to which the accused person is first brought, or to which he may be taken thereafter.”
“70. (1) Notwithstanding the provisions of Sections 64, 65 and 67 of this Act, a judge or magistrate of a division or district in which a person is apprehended who is charged with an offence, alleged to have been committed in another division or district, may, if he considers that the ends of justice would be better served by hearing the charge against such person in the division or district in which he has been apprehended and having regard to the accessibility and convenience of the witnesses, proceed to hear the charge and the person charged may be proceeded against, tried and punished in any division or district in which he was apprehended, or is in custody on a charge for the offence, or has appeared in answer to a summons lawfully issued charging the offence, as if the offence had been committed in that division or district, and the offence shall, for all purposes incidental to or consequential on the prosecution, trial or punishment thereof, be deemed to have been committed in that division or district:
Provided that, if at any time during the course of any proceedings taken against any person before any court in pursuance of this sub-section it appears to the court that the accused would suffer hardship if he were proceeded against and tried in the division or district aforesaid, the court shall forthwith, but without prejudice to a Magistrate’s powers under Section 67 of this Act, cease to proceed further in the matter under this sub-section.
(2) Where any person is charged with two or more offences, he may be proceeded against, tried and punished in respect of all those offences in any division or district in which he could be proceeded against, tried or punished in respect of any one of those offences, and all the offences with which that person is charged shall, for all purposes incidental to or consequential on the prosecution, trial or punishment thereof, be deemed to have been committed in that division or district.”
“71. In case any cause is commenced in any other division or district than that in which it ought to have been commenced, the judge or magistrate, as the case may be, may assume jurisdiction in accordance with the provisions of Section 70 and all acts performed and all decisions given by the judge or magistrate during the trial or inquiry shall be deemed to be valid in all respects as if the jurisdiction had been assumed prior to the performance of the said acts and the giving of the said decisions.”
It is glaring in the wording of Section 64 of the Criminal Act herein before reproduced that except for paragraph D, they are similar to the provisions of Section 45 of the Federal High Court Act which hammered on the Division or District where the offence was committed or in which anything has been done or has been omitted to be done, etc.
Again Section 70 talks about apprehending the accused in a Division or District other than the one in which the offence was alleged to have been committed. This Section empowers the Judge or Magistrate of the other Division or District in which the accused, alleged to have committed an offence in another Division, is apprehended to try the accused in that other Division in which he was apprehended, regard being had to accessibility to and convenience of the witnesses, but, where it appears to the Court that, that person shall suffer some sort of hardship if he were proceeded against, the Court shall forthwith cease to proceed further in the matter. Sub-Section 2 of Section 70 still dwelt on the venue, i.e. Division or District where the person charged can be tried.
Then Section 71 says that where a cause is commenced in any other Division than where the offence was committed, the Judge in that other Division may assume jurisdiction in accordance with the provisions of Section 70. Section 70 is the Section that stipulated about the area in which the accused was apprehended.

In the instant case, there is no indication on the part of the prosecution that one of the elements of the offence of failure to register Primegate Cybercafe with the Economic Financial Crime Commission was committed within the territorial jurisdiction of the Kaduna Division of the Federal High Court. There is, also, nothing suggestive of any fact that the Appellant omitted what he ought to have done in connection with the registration of the said cybercafe in the said Kaduna Division, or that part of the said offence was committed in Kaduna or that the Appellant continues to commit the offence in Kaduna such as opening another branch of Prime Gate Cybercafe and continue failing to register it. It was, also, not shown that the Appellant was apprehended in Kaduna for the offence, so as to enable the Federal High Court Kaduna assume jurisdiction.

The offence in question was allegedly committed in Ebonyi State. Even though there is one Federal High court as contended by the Respondent’s Counsel, the Federal High Court Act mandated that it shall be divided into Divisions of not less than four. Section 45 clearly stated the Federal High Court’s territorial jurisdiction. The Section is in pari materia with Sections 64 of the Criminal Procedure Act and 4 of the Penal code Act. This, now, brings me to the cases of Ibori vs. FRN (supra) where the case of Nwankwo vs. State (1993) 1 NCR 366 was referred to and applied by this Court and Abiola vs. FRN (supra) heavily relied upon by the Respondent’ Counsel. Abiola’s case was distinguished from Ibori vs. FRN (supra) which is similar to the instant matter. In Ibori vs. FRN (supra) the act of arraigning or preferring charge against an accused before a Court in a Judicial Division that has no correlation or connection with the area in which the offence was committed or any elements of the offence took place, was described as ‘forum shopping.

I must observe that it was never indicated in this Appeal that it was the Chief Judge of the Federal High Court that specially or specifically assigned the said case to the Federal High Court, Kaduna Division for hearing and determination. P.W.1, the sole witness for the prosecution said that he and his team met the accused at the Cyber cafe at No. 1 Okpara Street, Abakaliki, Ebonyi State known as prime Gate Cybercafe. He introduced himself as the Manager of the cafe and said he had been there since 2004. He said he had did not known whether it was not registered with EFCC. They moved to EFCC Zonal Office in Enugu, and, at Enugu he said he did not know if the cyber cafe was registered with EFCC, and he was, also not aware of the EFCC guidelines to internet service providers, cyber cafe owners, PTO’s (Private Tel. Operators), GSM. The certified true copy of the guideline was tendered as Exhibit A while the accused’s statement was tendered as Exhibit B. P.W.1 and his team cross-checked their database to ascertain if Primegate Cyber cafe was registered or not, and discovered it was not registered. In the course of their investigation, they discovered a letter which suggested that Primegate Cybercafe was taken over by Artifice Colony. They checked their Data and discovered that Artifice Colony was registered with EFCC with serial No. 737. He said that at No. 1 Okpara Street, Abakaliki, only Primegate Cyber cafe was there and it was not registered. He confirmed that the registered address of Artifice Colony for Exhibit C is No. 1 Okpara Street, Abakaliki. The registration was done online from EFCC website. There was no sign board of Artifice Colony mounted at No. l Okpara Street. P.W.1 said he did not purchase a ticket at the business premises, he couldn’t remember seeing anything bearing Primegate Cyber cafe. He did not look at the computer logo. He said that some computers were removed and analysed. P.W.1 further stated that by the registration of Artifice Colony, it was to operate at No. 1 Okpara Street, Abakaliki. He admitted he did not investigate the assertion of the Defence Counsel as to the use of No. 1 Okpara Street, by Artifice Colony. He also said he did not know whether Exhibit A, the guideline was gazetted or not.

It must be observed that the evidence of P.W.1 is clear that the offence was committed within the Enugu Judicial Division of the Federal High Court and that no element of it took place in any other Division of the Federal High Court, let alone it’s Kaduna Division. It is obvious that in situations such as this, Section 45(a) of the Federal High Court Act would come into play, that is to say;

“45(a) an offence shall be tried by a Court exercising jurisdiction in the area or place where the offence was committed.”

It is imperative to recognise the use of the mandatory word, ‘shall in the paragraph. The word ‘shall’ used therein is used in a command manner, not as a proposition or advice. This case is certainly not on all fours with Abiola vs. FRN (supra) in which an offence of treason was involved, i.e., crime that covers some of the more extreme acts against one’s sovereign or nation. Obviously, such crime is impossible to be hatched and committed in one Judicial Division when the seat of the Government, of the Federation is in Abuja. Definitely, several elements of the offence must have been committed in several areas in the country. Treason is quite diverse in nature than the offence of failing to register a cyber cafe within a locality; it requires a network of people to be executed. Be that as it may, the evidence of P.W.1, the prime witness for the prosecution lends credence to the fact that the offence was committed within the Enugu Judicial Division of the Federal High Court that has no bearing with the Kaduna Division of the Court.

Therefore, in the light of the analysis and an in-depth study of the aformentioned cases, I have no hesitation in resolving issue No. 1 in favour of the Appellant. On the issue alone, I hereby set aside the conviction and sentence of the Appellant by the trial Court for being a nullity. I hereby strike out the charge preferred against him before the Kaduna Division of the Federal High Court for want of jurisdiction.

Suppose I were wrong on the issue of jurisdiction, I would now proceed to consider issues Nos. 2 and 3 raised in this appeal. D.W.1 said, ‘he is a Director of Artifice Colony Nigeria Limited which was registered with the Corporate Affairs Commission (CAC). The Certificate of Incorporation of Artifice Colony was tendered as Exhibit E, and the certified true copy of its’ Memorandum and Articles of Association was equally tendered as Exhibit F. Artifice Colony started operating at No.1 Okpara Street, Abakaliki in August, 2005. D.W.1, explained how Primegate came into existence via his eldest brother in 2004 and which he later took over after he opened Artifice Colony in 2005. He explained that as at the 4th April, 2008, only Artifice colony Cybercafe was operating. He tendered all the documents in their possession including the tickets normally purchased by customers when they come in at No. 1 Okpara Street, Abakaliki, and which bears the name, ‘Artifice Colony’ and not Primegate.

Under cross-examination he stated that the only signboard mounted at No. 1 Okpara Street, Abakaliki was that of Primegate Cybercafe and not Artifice Colony.
Let us assume that there was only the signboard of Prime gate posted at No. 1 Okpara Street, Abakaliki, D.W.1, however, explained that all the materials including the tickets being purchased by customers who come to use the cyber cafe were printed in the name of Artifice Colony, all the computers used thereat, the logo on them are that of Artifice Colony.
P.W.1 admitted that when they entered the premises they did not bother to purchase any ticket from the office so as to prove their allegation that Primegate was operating an existing, not a moribund or wound-up cyber cafe at No. 1 Okpara, Street Abakaliki. Some of the computers were removed by the officials of EFCC for analysis; yet, no report was tendered through P.W.1 to prove the crime of operating a cyber cafe without registration. For a person to be guilty under Section 13(1)(a), the person must in the normal course of business, provide telecommunications or internet services, or must be the owner or the person in the management of any premises being used as a telephone or internet cafe or by whatever name called. I must observe that the fact that the signboard of primegate cyber cafe is posted at No. 1 Okpara Street, Abakaliki notwithstanding, there must be some overt act on the part of the owner of the cybercafe to prove that he actually provides telecommunications or internet services to the public. There was no shred of evidence adduced by the prosecution establishing that Primegate Cybercafe was indeed providing telecommunications and internet services at No. 1 Okpara Street Abakaliki. The fact that the signboard of Primegate is hanging thereat does not constitute any proof that the said cybercafe was providing any internet services at the said address. I think, the saying; ‘the hood does not make the monk’ suits appropriately here. All the documents tendered before the lower Court profoundly showed that it was Artifice Colony cybercafe that was indeed providing both the telecommunication and internet services at No. 1 Okpara Street, Abakaliki and not Primegate. P.W.1 admitted that no investigation was carried out by the EFCC to decipher whether Primegate Cybercafe was indeed taken over by Artifice Colony Cybercafe or not. They did not obtain the tickets and receipts normally issued to customers to strongly establish that it was Prime gate Cybercafe that was running the said business. The question is; ‘if there was no proof that Prime gate was indeed offering any internet or telecommunication services, where then lies the offence?’ It is only when the cyber cafe or a person is offering the services enumerated in Section 13(1)(a) of the Advance Fee Fraud And Other Fraud Related Offences Act, 2006 that the person or the entity is required in law to register the same. A moribund or defunct company, whose signboard is still hanging out on its former business address without any iota of proof of it running any business thereat, cannot be said to be carrying out the same services it had wound up, merely because of the continued display or affixation of its signboard at its former business address. It is not an offence to display a signboard, but, it is an offence to carry out such internet or telecommunication services or being the owner or person in the management of any premises being used as a telephone or internet cafe without registration of the cyber cafe. There must be proof of usage of the place as a telephone or internet cafe. This was lacking in the evidence proffered by the prosecution in the instant case. It is glaring that the judgment of the lower Court was not properly guided in line with principles of law. The Court terribly erred. Accordingly, I find the decision of the lower Court as being perverse.
Therefore, in the light of the reasons I have given above this Appeal is hereby allowed. The charge preferred against the Appellant, his conviction and sentence are hereby set aside for being null and void on the ground of lack of jurisdiction on the part of the trial Federal High Court, Kaduna Judicial Division.

ABDU ABOKI, J.C.A.: I agree.

AHMAD OLAREWAJU BELGORE, J.C.A.: I agree.

Appearances

Dr. J.O. Ibik, SAN; M.C. Okonkwo Esq.For Appellant

AND

Mrs. O. M. Oke; J. Saidi Esq.For Respondent