NWOSU & ANOR v. FRN (2021)

NWOSU & ANOR v. FRN

(2021)LCN/15530(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, May 14, 2021

CA/L/1490C/2018

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

1. CHRISTIAN NWOSU 2. TIJANI INDA BASHIR APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

 

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): The appellants were the accused persons in CHARGE NO: FHC/L/106C/17 before the Federal High Court of Lagos.

The two were arraigned on a seven count charge as follows:
COUNT ONE
that you, MRS. DIEZANI ALISON-MADUEKE (STILL AT LARGE) CHRISTIAN NWOSU, YISU OLANREWAJU ADEDOYIN AND TIJANI INDA BASHIR on or about the 27th day of March, 2015, in Nigeria within the jurisdiction of this Honourable Court conspired amongst yourselves to directly take possession of the N264,880,000 (Two Hundred and sixty four Million, Eight Hundred and Eighty Thousand Naira) which sum you reasonably ought to have known forms part of the proceeds of an unlawful to wit: gratification and you thereby committed an offence contrary to Section 18(a) of the Money Laundering (Prohibition) (Amendment) Act, 2012 and punishable under Section 15(3) of the same Act .
COUNT TWO
​That you, Mrs Diezani Alison-Madueke (Still at large) Christian Nwosu, Yisa Olanrewaju Adedoyin and Tijani Inda Bashir on or about the 27th day of March, 2015 in Nigeria within the jurisdiction of this Honourable Court directly took possession of the sum of N264,880,000 (Two Hundred and Sixty Four Million, Eight Hundred and Eighty Thousand Naira) which sum you reasonably ought to have known forms part of the proceeds of an unlawful act to wit: gratification and you hereby committed an offence contrary to Section 15(2)(d) of the Money Laundering (Prohibition) Act, 2012 and punishable under Section 15(3) of the same Act.
COUNT THREE
That you, Mrs. DIEZANI ALISON-MADUEKE (STILL AT LARGE) CHRISTIAN NWOSU, YISA OLANREWAJU ADEDOYIN AND TIJANI INDA BASHIR on or about the 27th day of March, 2015 in Nigeria, within the jurisdiction of this Honourable Court did conspire amongst yourselves to commit an offence, to wit: making cash payment of the sum of N234,880.000 (Two Hundred and thirty Four Million, Eight Hundred and Eight Thousand Naira) which sum exceeded the amount authorized by law without which through financial institution and you thereby committed an offence contrary to Section 18(a) of the Money Laundering (Prohibition) (Amendment) Act, 2012 and punishable under Section 16(2)(b) of the same Act.
COUNT FOUR
That you, Tijani Inda Bashir on or about the 27th day of March, 2015 in Nigeria within the jurisdiction of this Honourable Court, without going through financial institution, made cash payment in the sum of N70,050,000.00 (Seventy Million, Fifty Thousand Naira) to Yisa Olanrewaju Adedoyin which sum exceeded the amount authorized by law and you thereby committed on offence contrary to Section 1(a), Section 16(d) of the Money Laundering (Prohibition) (Amendment) Act 2012 and punishable under Section 16(2)(b) of the same Act.
COUNT FIVE
That you, Yisa Olanrewanju Adedoyin on or about the 27th day of March, 2015 in Nigeria, within the jurisdiction of this Honourable Court and without going through financial institution accepted cash payment of the sum of N70,050,000.00 (Seventy Million, Fifty Thousand Naira) from Tijina Inda Bashir which some exceeded the amount authorized by law and you thereby committed an offence contrary to Section 1(a), Section 16(d) of the Money Laundering under Section 16(2)(b) of the same Act.
COUNT SIX
That you, Tijani Inda Bashir on or about the 27th day of March, 2015 in Nigeria within the jurisdiction of this Honourable Court directly took possession of the sum of N264,880,000 (Two Hundred and Sixty Four Million, Eight Hundred and Eighty Naira) which sum you reasonably ought to have known forms part of the proceeds of an unlawful act to wit: gratification and you thereby committed an offence contrary to Section 15(2)(d) of the Money Laundering (Prohibition) (Amendment) Act, 2012 and punishable under Section 15(3) of the same Act.
COUNT SEVEN
That you, Christian Nwosu on or about the 27th day of March, 2015 in Nigeria within the jurisdiction of this Honourable Court directly used the sum of N30,000,000.00 (Thirty Million, Naira) which sum you reasonably ought to have known forms part of the proceeds of an unlawful act to wit: gratification and you thereby committed an offence contrary to Section 15(2)(d) of the Money Laundering (Prohibition) (Amendment) Act, 2012 and Punishable under Section 15(3) of the same Act.

Their respective pleas were taken and trial commenced before the learned trial Judge M.B. IDRIS J. (as he then was).
After the close of prosecution’s case, the appellants on 7th February, 2018 applied to raise and argue no case submission.

However, before the no-case submissions could be argued the learned trial judge M. B IDRIS J. was elevated to the Court of Appeal of Nigeria.

Inspite of his Lordships elevation a fiat was granted by the Hon. President of this Court and in compliance with Section 396(7) of the Administration of Criminal Justice Act 2015, for his Lordship to continue with the trial.
The jurisdiction of M. B. IDRIS JCA to continue to sit as a judge of the Federal High Court despite having been elevated was challenged.

After hearing the parties, the lower Court overruled the parties and continued with the hearing. The trial was subsequently concluded.

In his ruling on the objection to his jurisdiction, his Lordship held inter alia thus:
“In the circumstances, I shall refer this question of law raised by the Defendants/Applicants herein to the Court of Appeal pursuant to Section 295 of the Constitution.
Trial in this matter shall however proceed to conclusion and the verdict shall be postponed until such time as the questions have been considered and decided by the Learned Justices of the Court of Appeal.”

Pursuant to the reference to the Court of Appeal of this matter, parties filed and exchanged briefs of argument after transmission of record of proceedings.

BRIEFS OF ARGUMENT
OKERKE OBINNA NNAEMEKA 1st appellant’s counsel prepared 1st appellant’s brief of argument, CHIEF NELSON UMOH settled 2nd Appellant’s brief of argument.

1st appellant’s brief of argument was filed on 18th January 2019. Learned counsel for 1st appellant’s formulated one sole issue for determination. A similar sole issue was formulated by learned counsel for 2nd appellant in his brief.
ROTIMI OYEDEPO ISEOLUWA, Respondent’s counsel filed respondent’s brief of argument on 6th May, 2019. He identified the similar issue as formulated by counsel for appellants in their respective briefs.

SOLE ISSUE
WHETHER HAVING REGARDS TO THE PROVISIONS OF SECTION 396(7) OF THE ADMINISTRATION OF CRIMINAL JUSTICE ACT 2015, IT CAN BE SAID THAT HONOURABLE JUSTICE M. B IDRIS WAS NOT COMPETENT TO CONTINUE WITH THE HEARING OF CHARGE NO FHC/L/2017 BETWEEN FRN VS CHRISTIAN NWOSU AND TIJANI INDE BASHIR MERELY BECAUSE HIS LORDSHIP WAS ELEVATED AND SWORN IN AS JUSTICE OF THE COURT OF APPEAL OF NIGERIA.
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SUBMISSION OF COUNSEL
The submission of learned counsel for the appellants are understandingly the same. In fact, their respective conclusions are similarly worded.
They read thus:
We most respectfully urge your Lordships to resolve the sole issue for determination in this appeal in favour of the appellants and hold that the Hon. President of the Court of Appeal lacks the jurisdictional competence to grant fiat to My Lord Hon. Justice M. B Idris JCA to continue to entertain the trial of the 2nd appellant in the present charge, sequel to his elevation and confirmation as a justice of the Court of Appeal in that:
(a) The Federal High Court can only be duly constituted for the purpose of entertaining and considering the present charge against the 2nd appellant if it consists of at least one judge of the Federal High Court.
(b) My Lord Hon. Justice M.B Idris JCA is no longer a judge of the Federal High Court as contemplated by the Constitution of Federal Republic of Nigeria 1999 for the purpose of consisting proper forum in the present circumstance.
(c) There is no provision in the Constitution empowering My Lord Hon. Justice M.B. Idris upon his appointment and confirmation as a Justice of the Court of Appeal to also double as a judge of the Federal High Court.
(d) The provisions of Section 396(7) of the ACJA is not superior to Section 253 of the 1999 Constitution.
(e) The Constitution of Nigeria 1999 is supreme, substantive and superior to the mere provisions of the ACJA which is a procedural Rules of Court.
(f) Every Court, including presiding judges of such Courts is regulated by their respective Rules.
(g) Hon. Justice M.B Idris of the Court of Appeal is at law enjoined to preside over appellate matters only under Section 238 of the 1999 Constitution.

ROTIMI OYEDEPO ISEOLUWA in his brief on behalf of the Respondent submitted that the provisions of Sections 237, 238, and 248 of the 1999 Constitution vest great power on the President of the Court of Appeal. He contended that it was proper for the President to grant fiat or permission to one of his Justices to enable him conclude his part-heart matters. He cited JONES UDEOGU VS FEDERAL REPUBLIC OF NIGERIA APPEAL NO. CA/L/1064C/2018 delivered on 23rd April 2019.

​He finally urged the Court to hold that M.B. Idris J. (as he, then was) was competent and still had jurisdiction to conclude part-heard matters in line with the provision of Section 396 (7) of the ACJA.

Learned counsel for the 2nd Appellant also filed REPLY BRIEF on receipt of appellant’s brief of argument.
He submitted that the drafters of the Constitution never intended for the jurisdiction of the Federal High Court to be shared. They also never, according to him, intended Section 253 of the Constitution to be subject to any other legislation.

RESOLUTION
I have deeply considered the submissions of learned counsel on both side alongside the provisions of the 1999 Constitution (as amended) and Administration of Criminal Justice Act 2015.

The constitutionality or otherwise of the provision of Section 396 (7) of the Administration of Criminal Justice Act 2015 is the focus of this appeal.
Section 396 (7) of the ACJA reads thus:
“NOTWITHSTANDING THE PROVISION OF ANY OTHER LAW TO THE CONTRARY, A JUDGE OF THE HIGH COURT WHO HAS BEEN ELEVATED TO THE COURT OF APPEAL SHALL HAVE DISPENSATION TO CONTINUE TO SIT AS A HIGH COURT JUDGE ONLY FOR THE PURPOSE OF CONCLUDING ANY PART-HEAD CRIMINAL MATTER PENDING BEFORE HM AT THE TIME OF HIS ELEVATION AND SHALL CONCLUDE THE SAME WITHIN A REASONABLE TIME.
PROVIDED THAT THIS SUBSECTION SHALL NOT PREVENT HIM FROM ASSUMING DUTY AS A JUSTICE OF THE COURT OF APPEAL”
The ACJA is an Act of the National Assembly which by virtue of Section 1(3) of the 1999 Constitution (as amended) must not be inconsistent with the provisions of the Constitution. For a law to retain its life, it must not confront the source and origin of its life. The 1999 Constitution (as amended) is the grundnorm in Nigeria and the source of life for every law.
Every law must caress romance and glorify the grundnorm to avoid death sentence on ground of its confrontation of the source of its life. Such an infringing law becomes null and void to the extent of its consistency.
According to SANUSI JSC in UGBOJI VS STATE (2018) 10 NWLR (PART 1627) p. 346:
“My lords, permit me to reiterate that the Constitution of the Federal Republic of Nigeria of 1999, as amended had by Section one made provision to emphasize or assert its supremacy. By that provision, any law/statute or provisions thereof that runs riot and violent to the provisions of the constitution or is in conflict with the constitutional provision is null and void to the extent of inconsistency. See A.G ONDO STATE VS AG. OF THE FEDERATION AND ORS (2002) 9 NWLR (PT 772) 226”
To my mind, a law is inconsistent with the provision of the Constitution when either it does not conform with it or it speaks in any way contrary to the provision of the Constitution or it is expressly or impliedly on collision course with the spirit and intendment of the provisions of the Constitution. Such a law necessarily becomes null and void to the extent of its inconsistency. SeeOLORI MOTOR CO LTD & ORS VS UBN PLC (2006) 10 NWLR (PART 989) P. 586; UGBOJI VS STATE (SUPRA) (2018) 10 NWLR (PART) 1627 P. 346.
It is in the light of the above that I will resolve the sole issue in this appeal. Is the provision of Section 396 (7) of ACJA unconstitutional or inconsistent with the provision of the Constitution?
​The provision of Section 396 (7) of the ADMINISTRATION OF CRIMINAL JUSTICE ACT 2015 seeks to make a Justice of the Court of Appeal to sit as a judge of the Federal High Court to continue for the purpose of concluding any part-head criminal matter pending before him at the time his elevation.
This provision violently confronts the provision of Section 253 of the Constitution which states thus:
“THE FEDERAL HIGH COURT SHALL BE DULY CONSTITUTED IF IT CONSISTS OF AT LEAST ONE JUDGE OF THAT COURT.”
The provision of ACJA cannot constitute what Section 253 of the Constitution does not validly or duly constitute:
A JUSTICE OF THE COURT OF APPEAL CANNOT BY ANY STRETCH OF IMAGINATION BE REGARDED AS A JUDGE OF THE FEDERAL HIGH COURT.
A Justice of the Court of Appeal assumes office after taking his Judicial oath as a Justice of the Court of Appeal and declaring his assets. See PDP & ANOR VS INEC & ORS (1999) 11 NWLR PART 626 P. 200.
Even though, he was a judge of the Federal High Court on taking the Judicial Oath of Office, he has crossed the gulf. He ceased to be a Judge of Federal High Court and becomes a Justice of the Court of Appeal.
Section 396 (7) of the ADMINISTRATION OF CRIMINAL JUSTICE ACT seeks to reverse the process by making the Justice of the Court cross over the gulf again to become a judge of the Federal High Court. It seeks to undo the transformation endorsed by the Constitution. Clearly, in my respectful view, it is inconsistent with the provision of the 1999 constitution.
What the drafters of ACJA seeks to correct, can only be done through an amendment to the provision of the Constitution.
In OGBUNYIYA VS OKUDO (1979) NSCC 77 NNAEMEKA AGU J. (as he then was) heard the address of counsel on 13th June 1977 before he was appointed as Judge of the Federal Court of Appeal. His Lordship nevertheless continued to hear the matter to conclusion.
The Supreme Court on appeal held that his lordship did so without jurisdiction.
In view of the unconstitutionality of Section 396 (7) of the ADMINISTRATION OF CRIMINAL JUSTICE ACT 2015, OGBUNYIYA VS OKUDO (SUPRA) remains good law. See also UDEOGU VS FRN & ORS SC. 622C/2019.
In UDEOGU’s case (supra), the Supreme Court was called upon to decide on the constitutionality of Section 396 (7) of the ACJA and whether Honourable Justice Idris as a Justice of the Court of Appeal could validly sit as a judge of the Federal High Court upon the fiat granted by the president of the Court of Appeal.
The Supreme Court held as regards the above thus:
“The enactment of Section 396(7) of ACJA, 2015 is an attempt by the National Assembly, in view of this Court’s interpretation of Section 254(1) of the 1979 Constitution which is reproduced as the substantial part of Section 290(1) of the 1999 Constitution, to whittle down the operation of the said provisions of the Constitution. Ab initio Section 396(7) of the ACJA, 2015 was set out to frontally contradict and challenge the letters, substance and spirit of Section 290(1) of the 1999 Constitution…therefore, by operation of Section 1(3) of the Constitution, Section 396(7) of the ACJA 2015 to the extent of its inconsistency with Section 290(1) of the Constitution is void.”
It follows from the above that Honourable Justice M.B Idris was not competent to continue with the hearing of charge No. FHC/L/106C/2017 between FRN VS CHRISTIAN NWOSU AND TIJANI INDA because his lordship had been elevated and sworn in as a Justice of the Court of Appeal of Nigeria in line with Section 290 (1) of the 1999 Constitution (as amended).

​I resolve this sole issue in favour of the appellants. This appeal is allowed. Suit No. FHC/L/106C/17 is hereby remitted back to the Federal High Court for retrial by a judge of the Federal High Court.

CHIDI NWAOMA UWA, J.C.A.: I read before now a draft copy of the judgment delivered by my learned brother TUNDE O. AWOTOYE, JCA. His lordship has adequately and comprehensively resolved the sole issue that arose in this appeal in favour of the Appellants, I adopt same as mine in holding that the appeal is meritorious and same is accordingly allowed.
I abide by the order made by my learned brother in the leading judgment that Suit No. FHC/L/106C/17 should be remitted back to the Federal High Court for retrial by a Judge of the Federal High Court.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the judgment delivered by my learned brother, Tunde O. Awotoye, JCA. The reasoning and conclusion reached on the sole issue of the interpretation of Section 396(7) of the Administration of Criminal Justice Act, (ACJA) 2015 is infallible. The said Section 376(7) is without doubt an attempt by the National Assembly to confront and whittle down the provision of Section 290(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The 1999 Constitution of the Federal Republic of Nigeria (as amended) is, and remains the country’s Grund Norm, and therefore no Act of the National Assembly which runs contrary to any of its provisions can’t see the light of day. Such an Act must be struck down by the Nation’s ‘watch dog’, the judicature. Therefore, Ogbunyiya V. Okudo (1979) NSCC 77 still holds sway as the extant law on such an issue until such a time the National Assembly becomes wiser to do the needful.

​It is for this reason and the fuller elucidation proffered in the lead judgment that I too allow the appeal, set aside the decision of the lower Court and remit the case back to the Federal High Court for retrial before another judge of the Court.

Appearances:

OBIOMA OKEREKE FOR THE 1ST APPELLANT
CHIEF NELSON O. IMOH with him K. I. MARCUS FOR THE 2ND APPELLANT For Appellant(s)

ROTIMI OYEDEPO For Respondent(s)