ROTIMI WILMAT OLUBEKO v. FEDERAL REPUBLIC OF NIGERIA (2014)

ROTIMI WILMAT OLUBEKO v. FEDERAL REPUBLIC OF NIGERIA

(2014)LCN/6957(CA)

In The Court of Appeal of Nigeria

On Thursday, the 6th day of March, 2014

CA/L/121/2011

RATIO

INTERPRETATION OF STATUTES: LITERAL CONSTRUCTION 

It is trite and well established principle of construction of statutes that where the provisions of a statute are clear and unambiguous, effect should be given to them as such unless it would be absurd to do so having regard to the nature and circumstance of the case. See BRONIKS MOTORS LTD. VS. WEMA BANK LTD (1983) 1 SCNLR 296; AWOLOWO VS. SHAGARI (1979) 6-9 SC 51; FRN VS OSAHON & ORS (2006) 5 NWLR (PT.973) 361.
In NWAKIRE VS. CORP (1992) NWLR (PT 241) 289 or (1992) 6 SCNJ 1 the Supreme Court per Nnaemeka-Agu JSC posited that:-
“After all, the primary rule of construction is the literal construction which requires that we give the words used in the statute, and only those words, their ordinary and natural meaning, omitting no words and adding none, in the construction we arrive at, save in accordance with the recognized rules of construction.”
See also EGBE VS. YUSUF (1992) NWLR (PT 245) 1; OLANREWAJU VS. GOVERNOR OF OYO STATE (1992) 11 – 12 SCNJ 92; where an interpretation of statute will result in defeating the object of the statute, the court will not lend its weight to such interpretation. The language of the statute must not be stretched to defeat the aim of the statute. See ANSALDO (NIG) LTD VS. NATIONAL PROVIDENT FUND MANAGEMENT BOARD (1991) 3 SC 29. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

 

JUSTICES

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

Between

ROTIMI WILMAT OLUBEKO Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): The appellant, Rotimi Wilmat Olubeko, was arraigned in the Lagos Division of the Federal High Court on the 30th June, 2010, on a three count charge which reads as follows:

IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

Charge No. FHC/L/57C/2010

FEDERAL REPUBLIC OF NIGERIA

VS.

ROTIMI WILMAT OLUBEKO ‘M’ 43 YRS.

COUNT ONE

That you Rotimi Wilmat Olubeko ‘m’ and others still at large, sometimes in December, 2001 at Lagos, within the jurisdiction of the Federal High Court did conspire among yourselves to commit felony to wit: stealing and thereby committed an offence contrary to S. 516A of the Criminal Code, Cap C38, Vol. 4 Laws of the Federation of Nigeria, 2004.

COUNT TWO

That you Rotimi Wilmat Oluheko ‘m’ and others still at large, at the same place and time and in the aforesaid Judicial Division did steal a copy of Certificate of Occupancy No. 63/63/1989s plot 19 black 42 Lekki Peninsula valued two hundred million Naira property of Mrs. Francisca Adeoti Awolaja (deceased) and thereby committed an offence contrary to S. 390(9) of the Criminal Code, Cap C38, Vol. 4, Laws of the Federation of Nigeria, 2004.

COUNT THREE

That you Rotimi Wilmat Olubeko ‘m’ at the same place and time and in the aforesaid Judicial Division did obtain a Building Approval in respect of the property as aforesaid in the name of Francisca Adeoti Awolaja (deceased) by fraudulently representing yourself as Mrs. Francisca Adeoti Awolaja and thereby committed an offence contrary to S. 425 of the Criminal Code, Cap C38, Vol. 4 Laws of the Federation of Nigeria, 2004.

Dated 15th day of February, 2010

Signed
A.C. ONWUKA ESQ
PROSECUTOR
LEGAL SECTION
FORCE CID ANNEX
ALAGBON CLOSE
IKOYI, LAGOS
GSM: 07055322654

On the said 30th June, 2010 the appellant took his plea wherein he pleaded not guilty to all the three counts in the charge sheet.

Subsequently by a Notice of Preliminary Objection dated and filed on 20/9/2010 the appellant challenged the jurisdiction of the Federal High Court to entertain the matter. The grounds for the Preliminary Objection were detailed as follows:

1. Section 211(1)(a) and (2) of the Constitution of the Federal Republic of Nigeria 1999 expressly reserved the exercise of the power to institute and undertake criminal proceedings against any person including the Accused Person before any Court of law in Nigeria other than a Court-martial in respect of any offence created by or under any law of the Lagos State House of Assembly to the Attorney General of Lagos State or through officers of his department.
2. The offences in Counts 1, 2 and 3 in the charge preferred against the Accused Person in this case are not in relation to or in respect of any matter included in the Exclusive Legislative List, i.e. a Federal offence or incidental or supplementary to any matter on the Exclusive Legislative List.
3. Indisputably the Federal Republic of Nigeria or and the Prosecutor in this case is/are neither the Attorney General of Lagos State nor officers(s) of his department.
4. It is incompetent and unconstitutional for the Federal Republic of Nigeria or and A.C. ONWUKA, ESQ of the Legal/Prosecution Section, Force CID Annex, Alagbon Close, Ikoyi, Lagos, the Prosecution, not being the Attorney-General of Lagos State or an officer of his department to have instituted or undertook criminal proceedings against the Accused Person, Rotimi Wilmat Olubeko before this Court in respect of the offence(s) created by or under any law of the Lagos State House of Assembly.
5. The Federal Republic of Nigeria or and the Prosecutor aforesaid not being the Attorney-General of Lagos State or officers of his department had no Constitutional authority, legal capacity or competence to institute or undertake criminal proceedings or charge the Accused Person with the offence of stealing a Copy of Certificate of Occupancy No.63/63/1989s issued by the Governor of Lagos State.
6. The Federal Republic of Nigeria or the Prosecutor aforesaid not being the Attorney-General of Lagos State or officer of his department had no constitutional authority legal capacity or competence to institute, undertake criminal Proceeding or charge the Accused Person with the offence of fraudulently obtaining a Building Approval or Development Permit issued pursuant to the Lagos State Urban and Regional Planning and Development Law.
7. There was/is no constitutional or legal basis for the institution of criminal proceedings against and the prosecution of the Accused Person in this Court by the Prosecutor aforesaid and this Court thereby lacks the jurisdiction and powers to try the Accused Person in the criminal cause(s) or matter(s) in this case and all the criminal proceedings against him are null and void.
8. The Attorney General of Lagos State through the Assistant Chief State Counsel in the Directorate of Public Prosecutions in the office/Department of the Attorney General had in fact requested the Prosecutor through the Commissioner of Police Legal/Prosecution Section Force CID, Alagbon, Lagos by letters Ref. No. LJPIA.24/07 dated January and 24th March 2009 and oral submission in the Lagos State Magistrate Court in charge No. H/68/2008 on 17th July 2009 to forward the duplicate case file to the office of the Attorney-General of Lagos State.
9. The three (3) counts Charge against the Accused Person in this case before this Court is a farce and an abuse of the legal process of this Honorable Court as it is null and void ab initio And in the premises Counsel on behalf of the Accused Person shall urge this Honorable Court to strike out or dismiss the charge and discharge the Accused Person.

The said notice of Preliminary Objection was supported by a 16 paragraph affidavit sworn to by one Uzoamaka Nwafo and attached to it are Exhibits A to J.

A written address in support of the application was also attached.

At the hearing of the application on 4/11/2010 the counsel for the Respondent was absent and the appellant’s counsel adopted his written address. The learned trial judge then concluded as follows:

“Learned counsel for the prosecution is not in court and there is no letter before me to show why the counsel is not in court today.

In any event, the matter is adjourned to 12th November 2010 for Ruling. Hearing notice to issue on the prosecution.”

A perusal of the record however shows that the Respondent filed a counter affidavit of 39 paragraphs with Exhibits A to E attached therewith. There is also a written address in support of the counter affidavit. They were all dated and filed on 4/11/2010. See pages 116 to 143 of the Record.

Nonetheless the Ruling earlier adjourned to 12/11/2010 was delivered on 6/12/2010 wherein the learned trial judge in dismissing the Preliminary Objection held as follows:

I am bound by the decision of the Supreme Court in FRN v. OSAHON Supra and Section 252(1) of the 1999 Constitution. It is my humble but firm view that the A.C. Onwuka (Esq.) a Police Officer has the constitutional power under Section 211(1c) of 1999 Constitution to initiate the instant criminal charge against the accused before this Court and I have jurisdiction under Section 252(1) of 1999 Constitution to try the accused person of the 3 count charge dated 15/2/2010.
Above notwithstanding, the accused person was not even arraigned before me under Lagos State Law but under Section 516A, 390(g), 425 of the Criminal Code law Cap 38 laws of the Federation of Nigeria 2004.
In the light of the above, the Accused person’s preliminary objection challenging jurisdiction of this Court to entertain the instant charge lacks merit and same is accordingly dismissed. I so hold.

The appellant was not satisfied with the said ruling and consequently filed a Notice of Appeal dated 13/12/2010. An amended Notice of Appeal containing five grounds was subsequently filed by the appellant on the 4/5/2011. The five grounds of appeal devoid of their particulars read as follows:

GROUND 1
The Learned Trial Judge erred in Law when it held that it has jurisdiction take cognizance of or and entertain the criminal proceedings against the Appellant.

GROUND 2
The Learned Trial Judge erred and misdirected himself and therefore came to a wrong decision when in the circumstances of this case he misconstrued the provisions of Section 252(1) of the Constitution of the Federal Republic of Nigeria 1999.

GROUND 3
The lower Court erred in law when it misapplied the decision of the Supreme Court in FRN Vs. Osahon (2006) 5 NWLR (Part 973) 361 to the facts of this case.

GROUND 4
The Learned trial Judge erred in law and misdirected himself in law and therefore came to a wrong decision when he held on pages 10-11 of this Ruling “That A.C. Onwuka (Esq.) a Police Officer has the constitutional power under Section 211(1)(c) of 1999 Constitution to initiate the instant criminal charge against the accused before this Court and I have jurisdiction under Section 252(1) of 1999 Constitution to try the accused person of the 3 count charge dated 15/2/2010.

GROUND 5
The Learned Trial Judge erred and misdirected himself in law and therefore came to a wrong decision when he held on page 9 of his Ruling that “it is immaterial whether the offence is created under the laws made by the state House of Assembly or a matter not mentioned in exclusive legislative list or supplementary to any matter on the exclusive legislative list”

In compliance with the rules of this court briefs of argument were subsequently filed and served by the parties.

The appellant’s brief of argument dated and filed on 13/9/2012 was settled by Olaniran Obele Esq. of Tayo Oyetibo & Co. There is also a reply brief dated 19/3/2013 and filed on 22/3/2013.

The Respondent’s brief dated and filed on 4/3/2013 was settled by R.O. Akhaine (Esq.).

Three issues for determination were formulated in the appellant’s brief of argument as follows:

(a) Whether the learned trial judge was right in law when he held that the Federal High Court has jurisdiction to entertain a criminal charge alleging offences committed in respect of a Certificate of Occupancy and building approval issued by the government of Lagos State. (Grounds 1 and 3)
(b) Whether the learned trial judge was right in law when he held that by reason of the judgment of the Supreme Court in FRN VS. OSAHON (2006) 5 NWLR (PT.973) 361, the Nigerian Police Force could prefer, initiate or conduct this criminal proceedings in the Federal High Court charging offences allegedly committed in respect of Certificate of Occupancy and building approval issued by the Government of Lagos State. (Grounds 2)
(c) Whether the learned trial Judge was right in law when he held that it was competent for the Respondent to institute criminal proceedings in the Federal High Court in respect of offences allegedly committed in respect of a Certificate of Occupancy and building approval issued by the Government of Lagos State. (Ground 4)

In the Respondent’s brief of argument a sole issue was formulated for determination as follows:

“Whether the Federal High Court have jurisdiction to entertain a criminal charge No. FHC/L/55C/10 against the appellant.

The Respondent’s sole issue encompasses the appellant’s issues one and three. I will however adopt the three issues raised in the appellant’s brief in the determination of this appeal.

ISSUE ONE

Dwelling on this issue, learned counsel drew the attention of this Court to the High Constitutional importance of this appeal to the criminal jurisdiction of the Federal High Court to try offences on matters within the exclusive legislative competence of the Lagos State House of Assembly.

Learned counsel cited a number of authorities to drive home the importance of jurisdiction without which parties and the court labour in vain on any matter before it. He added that the constitution of the Federal Republic of Nigeria has stated clearly the criminal jurisdiction of the Federal High Court and this does not cover all offences in the Criminal Code Act but limited to those matters in which it exercises it’s civil jurisdiction and on such matters in respect of which jurisdiction has been conferred on it by the Constitution and the National Assembly. Learned Counsel referred to Section 251(1)(a) to (s) of the 1999 Constitution (as amended) as having prescribed the civil jurisdiction of the Federal High Court while Section 251(2)(3) and 252(1) and (2) state the Criminal Jurisdiction of the Federal High Court.

He contended that any exercise of a criminal jurisdiction outside the aforementioned provisions would be unconstitutional.

Learned counsel further submitted that the Federal High Court can only exercise it’s criminal jurisdiction to try offences under Section 390(a), 425 and 516A of the Criminal Code Act where they relate to one of those items on which the Federal High Court can exercise it’s civil jurisdiction or it is an item in respect of which jurisdiction has been expressly conferred on the court by an act of the National Assembly by virtue of Section 251(1) and (3) of the 1999 Constitution as amended.

Learned counsel referred to and made a detailed analysis of the cases of MANDARA VS. ATTORNEY GENERAL OF THE FEDERATION, (1984) NSCC 221 and EZE VS. FEDERAL REPUBLIC OF NIGERIA (1987) 1 NWLR (PT. 51) 506.

Based on the decision of the Supreme Court in Mandara’s case, learned counsel submitted that the mere charging of an accused person under the Criminal Code does not vest the Federal High Court with jurisdiction unless it has civil jurisdiction in respect of the subject matter of that offence or the National Assembly specifically confers such jurisdiction on the Court. The same goes for EZE VS. FRN Supra.

Also referring to the following cases; BRONIKS MOTORS LTD. VS. WEMA BANK LTD. (1983) A SCNLR 296 and BRAITHWAITE VS. GDM (1998) 7 NWLR (PT.557) 307 at 341-345. Learned counsel submitted that there is a distinction between judicial power and jurisdiction.

On the judicial interpretation of the scope and effect of Section 251(1) of the 1999 Constitution learned counsel cited the case of SHITTU VS. NIGERIAN AGRIC. & COOPERATIVE BANK LTD (2001) 10 NWLR (PT.721) 298 at 319.

He then submitted that based on all the cited authorities it is wrong for the Federal High Court to conclude that it has the same jurisdiction as the High Court of Lagos State because its judicial powers are the same under Section 252(1) of the Constitution.

Furthermore learned counsel argued that by Section 39(1) of the Land Use Act, the Federal High Court has no civil jurisdiction in respect of disputes on Certificates of Occupancy and building approvals issued by the Lagos State Government. SALATI VS. SHEHU (1986) 1 NWLR (PT 15) 198 at 205; SADIKWU VS. DALORI 5 NWLR (1996) (PT 447) 151 at 163 YARI VS. IBRAHIM (2002) 5 NWLR (PT 761) 587.

He added that a combined reading of the provisions of Section 251 & 252 of the Constitution and Section 7 of the Federal High Court Act and Section 39(1) of the Land Use Act would show that the Federal High Court lacks jurisdiction in civil disputes relating to Certificate of Occupancy and Building Approvals, consequently it cannot exercise jurisdiction with respect to offences relating to conspiracy to steal, and stealing of a Certificate of Occupancy issued by the Lagos State Government as well as obtaining a building approval by false pretences in which case the learned trial judge acted wrongly in assuming jurisdiction to try the appellant for the offences alleged against him.

ISSUES TWO AND THREE

The two issues are said to be related by learned counsel for the appellant and they were consequently argued together. Thus dwelling on both issues 2 and 3, learned counsel referred to the decision of the lower court wherein the learned trial judge relied on the Supreme Court case of FRN VS. OSAHON (2006) 5 NWLR (PT. 973) 361 to hold that the police of the Federal Republic of Nigeria have the locus standi to prosecute all offences at the Federal High Court notwithstanding whether the offence is created under the laws made by the State Houses of Assembly on a matter not mentioned in the exclusive legislative list. He then submitted that the said holding of the learned trial judge is an erroneous interpretation of the decision in FRN VS. OSAHON because the Supreme Court did not decide that the police of the Federal Republic of Nigeria can prosecute all offences at the Federal High Court notwithstanding the subject matter jurisdiction of that court. Rather the Supreme Court decided on the prosecutorial powers of the police to prosecute at the Federal High Court simpliciter.

Contrarily he argues, the real question that arose for determination in the trial court is whether the police has the statutory competence to prosecute in the Federal High Court for a charge alleging stealing of a certificate of occupancy issued by the Lagos State Government and obtaining building approval by false pretences.

Learned counsel answered this in the negative relying in his argument on issue one. He then concluded that the appropriate court to institute the charge is the High Court of Lagos State.

On the aspect of the locus of the Federal Government to institute a charge for the offence of stealing a Lagos State Government issued Certificate of occupancy learned counsel submitted that the Federal Government has no locus standi to engage in such prosecution especially as it was not initiated with the permission of the Attorney General of Lagos State having regard to the provisions of Sections 174 and 211 of the 1999 Constitution and the case of ANYEBE VS THE STATE (1986) 1 NSCC 37 at 39.

In his response, learned counsel for the Respondent submitted that the Federal High Court is a creation of the Constitution and its jurisdiction and power to hear and determine criminal cases and matters are encapsulated by both the Federal High Court Act and the Constitution with particular reference to Sections 251(2) & (3) and 252(1) and (2) which deals with the criminal jurisdiction of the Federal High Court.

Learned counsel emphasized on Section 252(1) which provides that:-

“For the purpose of exercising any jurisdiction conferred upon it by this Constitution or as may be conferred by an Act of the National Assembly. The Federal High Court shall have all the powers of the High court of a state.”

Learned counsel submitted that the appellant was at best relying on technicality in his contention but that, for a judicial system to work effectively there must be de-emphasis in the practice and use of technicalities. He relied on AYANKOYA VS OLUKOYA (1996) 6 NWLR (PT 159) 693 at 708 -709.

Learned counsel further referred to the case of FRN VS. OSAHON (supra) at page 438 to argue that the Supreme Court interpreted Section 23 of the Police Act to include power of a police officer to prosecute all criminal complaints in the Federal High Court and it is immaterial whether the offence is created under the Laws made by the State House of assembly on a matter not mentioned in the excusive list or incidental or supplementary to any matter on the exclusive legislative list.

He added that the appellant was not charged under the Criminal Code of Lagos State but under the Criminal Code Act, Laws of the Federation 2014 and by virtue of Section 252(1) of the Constitution as amended, the Federal High Court has jurisdiction to try it, more so with the decision of the Supreme Court in FRN VS. OSAHON supra.

In the appellant’s reply brief, it was submitted that the Respondent failed to challenge the critical issues raised by the appellant and which implication is that the respondent will be deemed to have admitted the points so raised in the appellant’s brief. See OKONGWU VS. NNPC (1989) 4 NWLR (PT.115) 296 at 309 and FRAVWODOKPE VS. UBTNMB (1993) 2 NWLR (PT 277) 590 at 596.

Furthermore, it was submitted that the Respondent failed to appreciate and understand the grouse of the appellant which is the lack of substantive jurisdiction of the Federal High Court as it relates to the charge and not the procedural irregularity which may be waived.

Now the charge against the appellant in the lower court which I had earlier reproduced in this judgment is for conspiracy to commit felony contrary to Section 516A of the Criminal Code; stealing of a copy of certificate of occupancy contrary to Section 390(a) of the Criminal Code; and fraudulently obtaining a building approval contrary to Section 425 of the Criminal Code. (All under the Laws of the Federation Cap C38 Vol. 4).

In resolving the issue in contention, it is to my mind necessary to revisit the scope of the Criminal Jurisdiction of the Federal High Court as conferred by the Constitution, the Federal High Court Act and interpreted by judicial authorities.

Section 251(1)(a) to (s) provides for a list of the civil jurisdiction of the Federal High Court. It reads as follows:
251(1) Notwithstanding anything to the contrary contained in the Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-
(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party;
(b) connected with or pertaining to the taxation of companies and other bodies established or carrying on business in Nigeria and all other person subject to Federal taxation;
(c) connected with or pertaining to customs and exercise duties and export duties, including any claim by or against the Nigeria Customs Service or any member or officer thereof, arising from the performance of any duty imposed under any regulation relating to customs and excise duties and export duties;
(d) connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking foreign exchange, coinage, legal tenders, bills of exchange, letters of credit, promissory notes and other fiscal measures:
Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank.
(e) arising from the operation of the Companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act.
(f) any Federal enactment relating to copyright, patent designs, trademarks and passing-off, industrial designs and merchandise marks, business names commercial and industrial monopolies, combines and trusts, standards of good and commodities and industrial standard;
g) any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluent and on such other inland waterways as may be designated by any enactment to be an international waterway, all Federal ports, (including the constitution and powers of the ports authorities for Federal ports) and carriage by sea;
(h) diplomatic, consular and trade representation;
(i) citizenship, naturalization and aliens, deportation of persons who are not citizens of Nigeria, extradition, immigration into and emigration from Nigeria, passport and visas;
(j) bankruptcy and insolvency;
(k) aviation and safety of aircraft;
(l) arms, ammunition and explosives;
(m) drugs and poisons;
(n) mines and minerals (including oil fields, oil mining, geological surveys and natural gas);
(o) weights and measures;
(p) the administration or the management and control of the Federal Government or any of its agencies;
(q) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of it agencies.
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.
Section 251(1)(s) however provides for:
“such other jurisdiction civil or criminal and whether to the exclusion of any or other court or not as may be prescribed by an act of the National Assembly.”
Section 251(3) also specifically provides that:
“The Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is conferred by Section 1 of this Section. (Underlining for emphasis).
Equally, in defining the powers of the Federal High Court for the purpose of exercising its jurisdiction as conferred in section 251, it is provided in section 252(1) as follows:
252(1) “For the purpose of exercising any jurisdiction conferred upon it by this constitution or as may be conferred by an act of the National Assembly, the Federal High Court shall have all the powers of the High Court of a State.
From my humble understanding of the provision of Section 251(3) read in conjunction with Section 251 (1)(a) to (r), the Federal High Court have Jurisdiction to entertain criminal matters in so far as they relate, connect or emanate from all the matters in which exclusive civil jurisdiction has been conferred on it under Section 251(1)(a) – (r).
In other words, and simply put, the Federal High Court does not only have exclusive civil jurisdiction over items (a) to (r) of Section 251(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) but also has criminal jurisdiction with respect thereto. In which case any offence committed in connection with the aforesaid items shall upon arraignment be tried by the Federal High Court.
With regard to Section 252(1) it did nothing but to create and explain the nature and scope of the power exercisable by the Federal High Court in the exercise of the jurisdiction conferred on it by Section 251(a-r) or any other jurisdiction as may be conferred by an Act of the National Assembly.
It did not by any stretch of imagination expand or increase the scope of the jurisdiction of the Federal High Court from limited to unlimited. Thus while by virtue of Section 272(1) of the 1999 Constitution the State High Court has unlimited jurisdiction only subject to Section 251, the jurisdictional scope of the Federal High Court in Civil and Criminal Matters is constitutionally limited to Section 251(1)(a-r) or as may be added by an act of the National Assembly.
It cannot therefore be rationally argued that by virtue of Section 252(1) the Federal High Court now has powers at large to handle or deal with any criminal matter brought before it. The words of the Section are very clear, plain and unambiguous to the effect that it is only for the purpose of exercising any jurisdiction conferred upon it by the constitution or an Act of the National Assembly that a Federal High Court shall be clothed with the power of a State High Court.

It is trite and well established principle of construction of statutes that where the provisions of a statute are clear and unambiguous, effect should be given to them as such unless it would be absurd to do so having regard to the nature and circumstance of the case. See BRONIKS MOTORS LTD. VS. WEMA BANK LTD (1983) 1 SCNLR 296; AWOLOWO VS. SHAGARI (1979) 6-9 SC 51; FRN VS OSAHON & ORS (2006) 5 NWLR (PT.973) 361.
In NWAKIRE VS. CORP (1992) NWLR (PT 241) 289 or (1992) 6 SCNJ 1 the Supreme Court per Nnaemeka-Agu JSC posited that:-
“After all, the primary rule of construction is the literal construction which requires that we give the words used in the statute, and only those words, their ordinary and natural meaning, omitting no words and adding none, in the construction we arrive at, save in accordance with the recognized rules of construction.”
See also EGBE VS. YUSUF (1992) NWLR (PT 245) 1; OLANREWAJU VS. GOVERNOR OF OYO STATE (1992) 11 – 12 SCNJ 92; where an interpretation of statute will result in defeating the object of the statute, the court will not lend its weight to such interpretation. The language of the statute must not be stretched to defeat the aim of the statute. See ANSALDO (NIG) LTD VS. NATIONAL PROVIDENT FUND MANAGEMENT BOARD (1991) 3 SC 29.

In the instant case, the provisions of Section 251(3) of the 1999 Constitution is very clear and unambiguous to the effect that the criminal jurisdiction of the Federal High Court shall be with respect to those matter in which it has civil jurisdiction conferred on it in Section 251(1) (a – r) or as may be given by an Act of the National Assembly.

The following cases cited by learned counsel for the appellant is very apt in this appeal. They are MANDARA VS. ATTORNEY GENERAL OF THE FEDERATION (1984) N.S.C.C. 221 and EZE VS. FEDERAL REPUBLIC OF NIGERIA (1987) 1 NWLR (PT. 51) 506.

In MANDARA’S case, the issue is whether the Federal High Court has jurisdiction to try the appellant on four counts of Treason, Treasonable Felony, incitement to mutiny and attempting to cause disaffection amongst members of the armed forces. The Supreme Court exhaustively considered the scope of criminal jurisdiction of the Federal High Court wherein it held per Obaseki JSC, at pages 235 to 241 of the report as follows:
“In particular, the question to be directly answered is whether the criminal jurisdiction conferred on the Federal High Court by the said Act includes jurisdiction to entertain the charges on which the appellant was tried and convicted. My learned brother IRIKEFE J.S.C has, in his judgment dealt extensively with the question and come to the opinion that the Federal High Court Act did not confer any jurisdiction on the Federal High Court to entertain the charges on which the appellant was tried and convicted. I am of the same opinion…The offences charged were all offences under the Criminal Code (Act) which did not arise from matters within the criminal jurisdiction of the Federal High Court…Clearly subsection (2) confers upon the court, criminal jurisdiction over matters arising out of or connected with any of the matters to which civil jurisdiction is conferred by subsection (1). This is not the issue in this appeal. The issue is whether by subsection (3) the Act confers upon the court in addition to the criminal jurisdiction over provisions of the Criminal Code in relation to offences for which the Attorney General of the Federation may initiate proceedings or whether subsection (3) is not designed to confer additional jurisdiction over matters contained in the Criminal Code (Act) but merely reaffirm that the court may try such offences in the Code where they relate to matters over which the jurisdiction is conferred by subsection (2)…The whole exercise is therefore one of interpretation of subsection (3) of section 7 of the Federal High Court Act. Therefore applying the well established canons of construction, it seems to me that the subsection cannot have the meaning ascribed to the Section by the majority justice of the court of Appeal. Jurisdiction is never conferred in obscurity. The language of the law must be clear and positive and I find this to be in all our laws including all the previous Constitutions of this country. Jurisdiction is a power clearly visible to all beholders of the Constitution and the law that confers it. Microscopic eyes are not required in order to unearth it…Unless words no longer bear their true meaning. I hold that when the jurisdiction conferred in criminal causes and matters in subsection (2) is limited to causes and matters arising out of or connected with any of the matters in respect of which jurisdiction is conferred by subsection (1) of Section 7, it was not the intention of the legislature to confer jurisdiction on the Federal High Court in respect of all Federal offences in the Criminal Code outside the class of offences expressly indicated. As the criminal charges on which the appellant was arraigned, tried and convicted fall outside those matters, the Federal High Court was not competent to assume jurisdiction in respect of the charges”.
Similarly in EZE VS. A.G. FEDERATION Supra the Supreme towed the same line hence it stated per Eso JSC as follows:
“In so far as the evidence goes, no question whatsoever of complaint of custom duty. It is not far the Court to stretch itself by interpretation to seek jurisdiction for itself or for another court. The issue of jurisdiction is one for the Constitution and the Law. Having regard to the limited jurisdiction of the Federal High Court vis-a-vis the unlimited jurisdiction of the State High Court, it must be so plain before, the Federal High Court could nimble into the State High Court jurisdiction. That limited jurisdiction of the Federal High Court is not that easy to sale over, but even, diverting ones mind to the charge only. The charges are clear and unambiguous. It is-
‘…Knowingly delivered to a Custom Officer a document produced for the purpose of customs, to wit a duplicate copy of an expired firearms import license which is untrue in a material particular…’
What is it that savours of revenue regeneration in this charge? The document is not a mystery. It is ‘a duplicate copy of an expired firearms import license’.
What revenue concept surrounds an expired firearms import licensed? What is the revenue to the Federal Government? Such train could be there for the purpose of giving the Federal High court jurisdiction. If the prosecution complains of revenue, why did they not charge Appellant with its loss or its evasion? Or even to examine ‘the material particular’ which the charge alleges, there is no suggestion of loss of revenue.
I do not think the words ‘produced for custom’ should send panic to any court? If a document produced for the purpose of customs duty to a custom officer is forged, and the complaint is limited only to forgery or uttering a forged document it is only that complaint that is relevant for the purpose of jurisdiction…I have no doubt that this appeal must succeed and it is hereby allowed. The judgment and orders of the Court of Appeal and the Federal High Court are hereby set aside.”
From the above authorities, I make bold to hold that the fact that the appellant was charged under the Criminal Code Act does not automatically cloak the Federal High Court with jurisdiction except in cases where it has civil jurisdiction over the subject matter of the offence in question as conferred by Section 251(1) of the Constitution or by an Act of the National Assembly. Presently, it is nowhere indicated that the exclusive jurisdictional competence of the Federal High Court has been expanded or increased either by the Grund norm (1999 Constitution as amended) or any Act of the National Assembly to include matters affecting land, landed property or theft of document relating thereto especially as pertaining to two individuals resident in Lagos State. Until this is done the scope of the jurisdictional, competence of the Federal High Court remains as prescribed and circumscribed by the provisions of Section 251(1) (a-s) of the Constitution of the Federal Republic of Nigeria 1999 as amended. Therefore the Federal High Court cannot under any circumstance be allowed to employ in aid, romantic grammatical logic to justify an invasion into a territory not declared explorable for it by any enabling statute.

Consequently this issue is resolved in favour of the appellant.

ISSUE TWO AND THREE
Both issues were argued together in the Appellant’s brief of argument and the response in the Respondent’s brief did not relate to any particular issue raised by the appellant but rather general in terms. I will nonetheless address the appellant’s issues two and three together.

The summary of the appellant’s grouse is the finding of the lower court at page 155 – 157 of the Record wherein it held thus:-

Supreme Court in FRN V. OSAHON Supra interpreted “any other authority or person” who can institute criminal proceedings under Sections 174(1)(c) and 211(1) (c) of 1999 Constitution to mean any authority or person authorized by law to institute or undertake criminal proceedings. The inescapable conclusion here is that Police Officer mentioned in Section 23 of the Police Act easily come under the phrase “any other authority or persons”.

Supreme Court in FRN V OSAHON interpreted section 23 of the Police Act to include power of Police Officers to prosecute all criminal complaints in the Federal High Court. It is immaterial whether the offence is created under the laws made by the State House of Assembly on a matter mentioned in exclusive legislative list or incidental or supplementary to any matter on the exclusive legislative list.

Besides, Section 23 of the Police Act which has conferred power on Police Officers to prosecute or initiate criminal charges coming under the phrase any authority or persons “under Section 211(1c) of 1999 Constitution” which has been given judicial approval by the Supreme Court in FRN V. OSAHON Supra allows the Police to prosecute in “any Court”.

Any Court here also includes Federal High Court. Besides, Supreme Court in OSAHON’S case ruled that Police cannot only prosecute in any Court but also specifically at the Federal High Court.

Assuming without deciding that, the offence mentioned in the three count charge doted 15/2/2010 are offences created pursuant to the law made by Lagos State House of Assembly and in the line with argument of Learned Counsel for the accused, it is only High Court of Lagos State that has jurisdiction to entertain the charge, this Court by virtue of Section 252(1) of 1999 Constitution has assumed all powers of the High Court of a State. In this case, High Court of Lagos State.

Section 252(1) of 1999 Constitution provides “for the purpose of exercising any jurisdiction conferred upon it by this constitution as may be conferred by an Act of the National Assembly, the Federal High Court shall have all the powers of the High Court of a State.

I have carefully gleaned through the above findings of the lower court vis-a-vis the basis for the challenge to its jurisdiction to hear the charge against the appellant. My humble conclusion is that there is a total derailment or departure from the track of contention.

A careful reading of the grounds for the Preliminary Objection will reveal that it is not challenging the right or power of a police officer to prosecute a criminal offence in the Federal High Court.

Rather, that the three count charge against the appellant for conspiracy to steal; stealing a certificate of occupancy, and fraudulently obtaining a building approval from the Lagos State Government is not within the scope of Criminal Jurisdiction of the Federal High Court..

The appellant reflected this stance at page 22 of his brief of argument wherein he submitted that:-

“The question which the court below should have addressed but which it failed to do is not whether the police can prosecute a criminal charge in the Federal High Court.
That issue has been resolved by the Supreme Court in F.R.N. VS. OSAHON (Supra). The real question however is whether it competent for the police to prosecute in the Federal High Court a charge alleging stealing of a Certificate of Occupancy issued by the Government of Lagos State and obtaining a building approval issued by the State Government by false pretence.”

The Appellant in that regard never challenged the competence of the police to prosecute criminal matters in the Federal High Court. It is therefore wrong for the learned trial judge to stand on the decision of FRN VS. OSAHON (Supra) to hold that it has jurisdiction to try the charge against the appellant. In FRN vs. OSAHON (Supra) the issue before the Supreme Court was whether by virtue of Section 56(1) of the Federal High Court Act; Section 23 of the police Act and Section 174(1) of the 1999 Constitution, a police officer can prosecute a criminal offence in the Federal High Court. The Apex Court indeed sealed the issue in that regard by holding Section 56(1) of the Federal High Court Act, and Section 23 of the Police Act when read together with Section 174(1) of the Constitution make it clear that a police officer, any police officer, has the power to conduct criminal proceedings before the Federal High Court. This is a settled issue and need not be over flogged. That being the Ratio decidendi in FRN VS. OSAHON (Supra) it behooves the lower court to apply it accordingly and not to embark on an exploratory adventure in a bid to discreetly expand the frontiers of its jurisdiction far beyond the scope constitutionally fenced by Section 251(1) of the 1999 Constitution. The boundaries of this fence can only be adjusted via an Act of the National Assembly. This is yet to be done and until this is effected the jurisdictional fence of the Federal High Court in criminal matters remains unmovable within the ambit of Section 251(1) (a- s) of the 1999 Constitution.

While it is agreed that a police officer has the competence to initiate and prosecute, criminal offences in the Magistrate and High Courts of a State and the Federal Capital Territory as well as the Federal High Court, such power is however not at large but confined to the territorial and jurisdictional competence of such courts.

In the instant case, the three count charge of conspiracy to steal; stealing a certificate of occupancy and fraudulent representation are no doubt offences trial able in the High Court of Lagos State where the offence was committed and where both the compliant and accused are domiciled. Also the subject matter of theft is an item produced and issued by the Lagos State Government. Which item is not found amongst those listed in Section 251(1) (a – r) of the 1999 Constitution. The lower court indeed erred in assuming jurisdiction to entertain the charge against the appellant.

Issues two and three are therefore resolved in favour of the Appellant. On the whole I find that this appeal is meritorious and it is hereby allowed.
The Ruling of the Federal High Court, Lagos Division delivered by O.E. Abang J. on the 6th day of December 2010 is hereby set aside.

It is therefore ordered that the case file be remitted to the Attorney General of Lagos State for necessary action relating to the prosecution of the appellant in the High Court of Lagos State.

JOSEPH SHAGBAOR IKYEGH, J.C.A.:  I agree with the elaborate judgment pronounced by my learned brother, Samuel Chukwudumebi Oseji, J.C.A., which I adopt as my judgment with this little addition, by way of emphasis.

The kernel of the issue at the court below was whether the Federal High Court to the exclusion of the Lagos State High Court had the jurisdiction to hear a criminal case involving stealing of a certificate of occupancy, a document of title to land belonging to a private person relating to a plot of land in Lagos state; not whether the police are competent to prosecute cases in the High court inclusive of the Federal High Court, the latter of which was settled in favour of the police by the Supreme Court in the case of F.R.N. v. Osahon (2006) 5 NWLR (Pt. 973) 361 with respect to offences the police are statutorily empowered to investigate and possibly prosecute.

The court below was swayed by the decision in F.R.N. v. Osahon (supra) read with Section 252 (1) of the Constitution of the Federal Republic of Nigeria, 1999, (1999 Constitution), as altered, to hold that it has the jurisdiction to entertain a criminal case of stealing of a certificate of occupancy covering a piece of rand in Lagos State. I think the court below erred. First, the case of F.R.N. v. Osahon (supra) is primarily on the right of audience of the police in the prosecution of their cases by their personnel who are legal practitioners or who are called to the Nigerian Bar in the superior courts of record. The case does not decide on or enlarge the jurisdiction of the Federal High Court to hear criminal cases otherwise ordinarily reserved for State High Courts, such as the stealing of a document of title belonging to an individual, as was the case here, which did not involve a federal offence.

Second, if the court below had looked beyond Section 252(1) of the 1999 Constitution, as altered, by considering the fact that the National Assembly had not increased the criminal jurisdiction of the Federal High Court to include the offence of stealing of a document of title of an individual respecting a piece of land under the control of Lagos State, it would have held otherwise.

Although land, being immovable, cannot be stolen, a document of title over a piece of land is collaterally linked to land and cannot be any of the issues connected with the civil jurisdiction of the Federal High Court under Section 251(1) of the 1999 Constitution, as altered, as to confer criminal jurisdiction on the Federal High Court to determine an allegation of stealing of the document of title in question vide 251(3) of the 1999 Constitution. See also Bukar Mandara v. Attorney-General of the Federation (1984) 1 SCNLR 311 where the Supreme Court held inter alia that aside from the jurisdiction conferred on the Federal High Court by the National Assembly, its criminal jurisdiction under the Constitution must be within the compass of the matters arising out of or connected with any of the matters to which civil jurisdiction is conferred on it by Section 251(1) of the 1999 Constitution, as altered.

For these reasons and the abler reasons contained in the lead judgment, I too find merit in the appeal and hereby allow it and abide by the consequential orders contained in the said lead judgment.

TIJJANI ABUBAKAR, J.C.A.: The law is settled on seemingly endless judicial decisions, that where proceedings are conducted by a court that lacks jurisdiction so to do, such proceedings however excellently, and brilliantly conducted will be a complete nullity, and ultimately amount to exercise in futility by the trial court. Until there is adjustment by the National Assembly, the jurisdiction of the Federal High Court shall be as expressly provided by Section 251(1) of the constitution of the Federal Republic of Nigeria.

I also join my learned brother Oseji JCA is holding that the lower court in entertaining the charge against the Appellant acted in excess of its jurisdiction, Appellants appeal therefore succeeds and same is hereby allowed.

The ruling delivered by E.O. Abang J. of the Federal High Court on 6th December 2010 is set aside by me. I also order that the case file be remitted to the Attorney General of Lagos State for prosecution if the Attorney General still thinks it is in the best interest of the public to so proceed.

 

Appearances

O. Obele with A. AbdulwahabFor Appellant

 

AND

Raymond O. Akhaine legal officer (FCID)For Respondent