Abuse of Office

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SIDI DAUDA BAGE, J.S.C. (Delivering the Leading Judgment): The Appellant Mrs. Patience Okoro Eye and five others, namely Afolabi Olufemi Johnson, Ilori Adekunle Sunday, Asemota Augustina, Kolawole Babalola, Olaniran Muniru Adeola and Fatai Adedokun Yusuf were on 2nd June, 2015 arraigned before the Federal High Court, Ibadan Judicial Division, charged with abuse of office, corrupt practices, fraud and illegally owning assets. The particulars of the offence charged are as follows:
COUNT 1
“That you PATIENCE OKORO EYE, AFOLABI OLUFEMI JOHNSON, ILORI ADEKUNLE SUNDAY. KOLAWOLE BABALOLA, OLANIRAN MUNIRU ADEOLA and FATAI ADEDOKUN YUSUF on or about 5th August, 2014 in Ibadan within the Jurisdiction of this Honourable Court, have by virtue of abuse of your office, being employees of Central Bank of Nigeria, contributed to the economic adversity of the Federal Republic of Nigeria when you destroyed a box marked “Counted Audited Dirty” filled with Newspapers in place of a box containing N10,000,000 (Ten Million Naira) of N1000 denomination and which activity led to the increase of money in circulation which the briquetting exercise of Central Bank of Nigeria was intended to control and you thereby committed an offence punishable under Section 1(2) (b) and Section 10(1) of the Recovery of Public Property (Special Provision) Act, Cap. R4, Laws of the Federation of Nigeria, 2004.”
COUNT 2
“That you PATIENCE OKORO EYE, AFOLABI OLUFEMI JOHNSON, ILORI ADEKUNLE SUNDAY, KOLAWOLE BABALOLA, OLANIRAN MUNIRU ADEOLA ANd FATAI ADEDOKUN YUSUF on or about 5th August, 2014 in Ibadan within the Jurisdiction of this Honourable Court, engaged in corrupt practices when you replaced the content of a box of N1,000 notes denomination in a total sum of N10,000,000 (Ten Million Naira) marked as “Counted Audited Dirty” meant for briquetting with Newspapers and which sum you converted to your own use and you thereby committed an offence punishable under Section 1 (2) (a) and Section 10(1) of the Recovery of Public Property (Special Provision) Act Cap. R4 Laws of the Federation of Nigeria, 2004.”
COUNT 3
“That you PATIENCE OKORO EYE, AFOLABI OLUFEMI JOHNSON, ILORI ADEKUNLE SUNDAY, ASEMOTA AUGUSTINA, KOLAWOLE BABALOLA, OLANIRAN MUNIRU ADEOLA and FATAI ADEDOKUN YUSUF on or about 5th August, 2014 in Ibadan within the Jurisdiction of this Honourable Court, being employees of Central Bank of Nigeria owned asset, to wit: the sum of N10,000,000.00 (Ten Million Naira) being money you took from a box marked “Counted Audited Dirty” which was meant for briquetting and which you replaced with Newspapers and for your personal purpose which asset is in excess of your legitimate, known and provable income and assets and you thereby committed an offence under Section 7 (2) of the Bank Employees etc, (Declaration of Assets) Act Cap. B1 Laws of the Federation of Nigeria, 2004.”
COUNT 4
“That you PATIENCE OKORO EYE, AFOLABI OLUFEMI JOHNSON and ILORI ADEKUNLE SUNDAY, on or about 5th August, 2014 in Ibadan within the Jurisdiction of this Honourable Court, with intent to defraud, were privy to making false entry in a document, to wit: the report of your briquetting exercise that took place at Central Bank of Nigeria, headquarters, Abuja, to the effect that the briquetting exercise was successful without any abnormality when indeed a box stuffed with newspapers as against N10,000,000 (Ten Million Naira) notes was discovered during your briquetting exercise on the 5th of September, 2014 and you thereby committed an offence punishable under Section 438(b) of the Criminal Code Act Cap, C38 Laws of the Federation of Nigeria, 2014.”
COUNT 5
“That you PATIENCE OKORO EYE, AFOLABI OLUFEMI JOHNSON 1st – 3rd and ILORI ADEKUNLE SUNDAY on or about 5th August, 2014 in Ibadan within the Jurisdiction of this Honourable Court, with intent to defraud, were privy to omitting material particulars from a document to wit: the report of your briquetting exercise that took place at Central Bank of Nigeria, Ibadan branch which you submitted to Central Bank of Nigeria headquarters Abuja, to the effect that the briquetting exerciser was successful without any abnormality when indeed a box stuffed with newspapers as against N10,000,000 (Ten Million Naira) notes was discovered during your briquetting exercise on the 5th of September, 2014 and you thereby committed an offence punishable under Section 438(c) of the Criminal Act Cap, C38, Laws of the Federation of Nigeria, 2004.”
The Appellant pleaded not guilty to all the counts of the charge and the trial proceeded. On 2nd June,
2015, an oral application was made on behalf of the
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Appellant for bail and same was refused, thereafter, on the same day, a formal application was filed accompanied by an affidavit in support and a written address.
On the 8th June, 2015, the respondent filed its counter affidavit and a written address in opposing the bail application. In refusing the bail, the learned trial judge in his Ruling delivered on 15th June, 2015 held as follows:
“…. I hold that the accused persons have not been able to persuade me by strong and cogent reasons why I should exercise my discretion in their favour. The application fail and same are hereby dismissed. Alternatively, I enter an order for accelerated hearing and in making this order, the Court will tolerate frivolous application particularly on adjournment either from the prosecution or defence counsel.”

Dissatisfied with the Ruling of the trial Court, the appellant filed an appeal. It was heard by the Ibadan Division of the Court of Appeal. The Court on 9th December, 2015 affirmed the decision of the trial Court when it said:
“l remain of the firm view that the learned trial Judge was painstakingly enough in considering all the most relevant materials before him, in terms of the affidavits of the Appellant and the counter affidavit of the Respondent as well as the proofs of evidence and applicable well established principles governing the granting or refusal of the application in the instant appeal. I am unable to see, in this appeal, any strong reason to fault any of the steps taken by the learned trial judge in the exercise of his discretion. I am not convinced that there is any good reason to call for this Court to accept or accede to the request to interfere with the exercise of the discretionary power of the lower Court in the instant appeal with respect to its refusal of the application for bail. I am fully satisfied that the learned trial judge in the circumstance exercised his power to grant or refuse bail to the Appellant judicially and judiciously.”

This appeal is against that judgment. In accordance with Rules of this Court, briefs of argument were duly filed and served. The appellant’s brief was filed on the 26th September, 2016, while the respondent’s brief was filed on the 23rd October, 2017 was deemed duly filed and served on 26th October, 2017.
Learned counsel for the appellant formulated three issues for the determination of his appeal.
“1. Whether the Court below was correct in all the circumstances to have upheld the decision of the Trial Court in refusing the Appellant bail after finding as it did, that there were “procedural Missteps” taken by the Trial Court in reaching its ruling? Ground 1 and 5.”
“2. Whether the Court below was correct in accepting as unchallenged paragraphs 9, 11, 12, 13, and 18 contained in Respondent’s Counter Affidavit in opposition to the Appellant’s bail application and act on the story as set out by the Respondent? – Ground 2.
“3.Whether the Court below was correct in affirming the decision of the trial Court in the light of the provisions of Sections 158 and 162 of the Administration of Criminal Justice Act, 2015 as well as Sections 36(5) of the Constitution of Federal Republic of Nigeria, 1999 (as Amended)? – Grounds 3 and 4.”

Although learned counsel for the appellant formulated 3 issues for determination, learned counsel for the respondent respectfully submitted that only two issues call for determination in this appeal and the issues are;
1. Whether the Court of Appeal was not right in refusing to interfere with the exercise of discretion of the learned trial judge refusing to admit the Appellant to bail pending her trial (See grounds 2, 3 and 4).”
2. Whether the Counter Appeal was not right in holding that the procedure adopted by the learned trial Judge in the consideration of the Appellant’s application for bail did not occasion any prejudice or miscarriage of justice to warrant the setting aside of the decision of the trial Court. (See ground 1 and 5).”

After a careful perusal at the issues formulated by both the appellant and the respondent, the view of this Court is that a lone issue arise for the determination of this appeal to wit:
“Whether the lower Court was right in refusing to interfere with the exercise of discretion of the learned trial judge refusing to admit the appellant to bail pending the determination of her trial.”

Learned counsel for the appellant submitted that where an offence carries a sentence exceeding 3 years imprisonment, bail in such a case is not a mere matter of course, but rather, at the discretion of the Court which must be exercised judicially and judiciously.
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Learned counsel argued that, the Administration of Criminal Justice Act, 2015 has obviated the need to make the grant of bail substantially subject to the discretion of the trial Judge.
Counsel cited Section 158 of the Administration of Criminal Justice system as follows:
“When a person who is suspected to have committed an offence or is accused of an offence is arrested or detained, or appears or is brought before a Court, he shall, subject to the provisions of this part, be entitled to bail.”

Learned counsel argued that, the word “shall” inserted into the drafting of the provision of the law cited above removes the discretionary tone in admitting to bail a defendant. Counsel submitted that in TABIK INVESTMENT LTD. & ANOR. VS GUARANTY TRUST BANK PLC (2011) LPELR this Court held that;
“The word “Shall” connotes mandatory discharge of a duty or obligation, and when the word is used in respect of a provision of the law that requirement must be met. The word shall may have other meanings, for when used in legislation, it may be capable of translating into a mandatory act giving permission or direction. See NNONYE VS ANYICHIE & ORS. (2005) 2 NWLR PT. 910 page 623. The use of word shall in the case at hand, to my mind conjures mandatoriness, the conditions of which must be met and satisfied.”
Learned counsel also cited Section 118(2) of the Criminal Procedure Act which provides thus:
“Where a person is charged with any other felony other than a felony punishable with death, the Court may if it thinks fit, admit him to bail.”

Counsel submitted that the wordings of Section 118(2) above, indicate that the Court “may” used in Section 118(2) above, indicate that the Courts were given total discretion as to the granting of bail to a defendant.
Learned counsel argued that the appellant had in paragraph 23 of her affidavit in support of the application for bail at pages 465 of the record stated that she would regularly attend Court to stand for her trial if admitted to bail. The averment which was not contradicted by the respondent in its counter affidavit at pages 483 to 487 of the record of appeal.
Learned counsel further submitted that there is no evidence before the trial Court indicating that the appellant would commit another offence or attempted to evade her trial.
Counsel argued that the provision of Section 162 do not permit mere speculation when opposing the granting of bail. He further argued that the respondent counter affidavit was bereft of any facts or solid evidence alluding to an attempt by the appellant to run foul of any of the provisions in Section 162 save for feeble averment in paragraph 12.
In his final argument, learned counsel for the appellant submitted that it is settled law that legislation is to be given its ordinary interpretation and effect, most especially where words used are straight forward and unambiguous he cited TORIOLA VS WILLIAMS 1982 7 SC. 27 and LAWAL VS G. B. OLLIVANT 1972 3 SC.
He urged the Court to hold that the lower Court was incorrect in upholding the decision of the trial Court in light of Section 158 and 162 of Administration of Criminal Justice Act 2015 and Section 36(5) of the Constitution of Federal Republic of Nigeria 1999 (as amended).
On the other hand, learned counsel for the respondent argued that there is a concurrent finding of fact by Federal High Court, Ibadan and the Court of Appeal that the appellant is not entitled to bail having regards to the materials presented before the Court. He submitted that the attitude of this Court over the years is that it would not interfere with the concurrent findings of facts of both the High Court and the Court of Appeal unless it is shown by the appellant that such findings are perverse. He cited SOBAKIN VS THE STATE (1981) 5 SC 375.

Learned counsel observed that although the power of the trial Court to admit the appellant to bail in respect of the offences for which she is standing trial, is discretionary, such discretionary power must be exercised judicially and judiciously, counsel submitted that since appellant’s appeal is against the exercise of discretion, the appellant needs to satisfy this Court that the lower Court did not exercise its discretion judicially and judiciously.
Learned counsel argued that in a situation such as the instant appeal, which borders on the exercise of the discretion, the duty of this Court is simply to look at the record, review same and determine whether the trial Court and the Court below exercised the discretion judicially and judiciously having
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regards to the facts and circumstances of the case, he cited ALI VS THE STATE (2012) 10 NWLR (Pt. 1309) 589 at 609 Paras A – D and SAFFIDINE vs C.O.P. (1965) 1 All NLR 54.
Learned counsel submitted that the requirements set out under Section 162 of the Administration of Criminal Justice Act has not changed the position of the law with regard to the factors that the Court would consider in refusing or granting bail, according to him, it has also not removed the discretionary power of the Court to refuse or grant bail.
Counsel observed that the gravity of the offence involved is of paramount importance to a trial Court in deciding on the grant or refusal of bail. He further argued that the offences being alleged against the appellant attract the maximum sentence of twenty (20) years imprisonment, it is like capital offence against the nation’s economy. So, if released on bail, the severity of the punishment which conviction would entail would make the appellant to evade her trial if released on bail at this stage.
Learned counsel submitted that it is settled law that the more cogent the evidence before the Court, the greater the possibility that the defendant may attempt to evade his trial or may refuse to appear at his trial.
Learned counsel finally urged this Court to hold that there is no miscarriage of justice in the approach adopted by the two lower Courts.
On the part of this Court, Section 118(2) of the Criminal Procedure Act, in my view makes the grant of bail to an accused person standing trial before a High Court, purely a discretionary matter in the hands of the trial judge. The trite position of the law is that in exercising the jurisdiction given to him by the law in the grant or refusal of bail, the trial judge is bound to consider the weight of facts pleaded to, in an affidavit evidence placed before him. The determination of the criteria is quite important because the liberty of the appellant stands or falls by the decision of the Court. In performing the judicial function, the Court wields a very extensive discretionary power, which must be exercised judicially and judiciously.
See BAMAIYI VS THE STATE (2001) 8 NWLR (Pt. 715) 270 EKWENUGO vs F.R.N. (2001) 6 NWLR (Pt. 708) 171 DANTATA VS POLICE (1958) NRNLR 3.
In exercising its discretion, the Court is bound to examine the evidence before it without considering any extraneous matter. The Court cannot exercise its whims indiscriminately. Similarly, there is no room for the Court to express its sentiments. I must say that, it is a hard matter of law, facts and circumstances which the Court considers without being emotional sensitive or sentimental.
See ADAMU SULEIMAN & ANOR VS C.O.P. PLATEAU STATE, 33 NSCQR (Pt. 2) 735 at pp. 758 -759.
In EKWENUGO VS F.R.N. Supra the Court held that:
“The issue of grant of bail by a trial Court calls for due exercise of discretion which entails the application of common sense based on a given set of facts and attendant circumstances in accordance with justice. The discretion must be exercised not only judicially, but judiciously as well.”
See also UNIVERSITY OF LAGOS VS OLANIYAN (1985) 1 NWLR (Pt. 1) 156 SAFFIDINE vs C.O.P. (1965) 1 All NLR 54 UGBOMA VS OLISE (1971) All NLR 8 and ODUSOTE VS ODUSOTE (1971) All NCR 219.
It is well settled that if judicial discretion has been exercised bonafide uninfluenced by irrelevant considerations and not arbitrarily or illegally by the lower Court, an appeal Court will not ordinarily interfere. But there are exceptions whereby this Court is entitled to impeach the exercise of judicial discretion by the lower Court. Thus, an appellant Court may interfere with exercise of judicial discretion if it shown that there has been a wrongful exercise of the discretion such as where the trial Court acted under misconception of law or under misapprehension of fact in that it either gave weight to irrelevant or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases, where it is in the interest of justice to interfere.
See ENEKEBE VS ENEKEBE (1964) 1 All NLR 102 at 106, DEMUREN VS ASUNI (1967) 1 All NLR 94 at 101, MOBIL OIL VS FEDERAL BOARD OF INLAND REVENUE (1977) 3 SC 97 at 141, SOLANKE VS AJIBOLA (1968) 1 All NLR 46 at 52.

Learned trial judge in his Ruling at page 533 of the record stated that:
“I have considered and reflected on the proof of evidence. They are mind boggling and weighty. I have not been persuaded by the applications and submissions made before to think otherwise.”
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It is quite clear that the learned trial judge did not consider the affidavit evidence before him, for if he had considered it and gave it the attention it deserves, he would not have reached that decision. As a matter of fact, it is the affidavit evidence that he should have dwelt on, rather than the proof of evidence which he dealt with extensively and went into the merit of the case.
In STATE VS AKAA (2002) 10 NWLR (Pt. 774) 157 at 172. The Court of Appeal stated thus;
“In an application for bail, it is the affidavit evidence before it that a Court should dwell on rather than the proof of evidence. In the instance case, the trial Court failed to consider the affidavit and counter affidavit deposed to by the parties. Rather it dwelt extensively on the proof of evidence thereby going into the merit of the case.”

The appellant in the instant case, had deposed to his affidavit at page 465 of the record as follows:
“I have also been in the custody of the EFCC since Wednesday the 27th day of May, 2015 till the date of filing this application after I obediently reported to the office of the EFCC when I received a call from one of the investigating officers to report at their office in Abuja.
I know as a fact that I never breached the conditions of my bail when I was granted administrative bail by the EFCC before I was further detained for several days and before formally charging me to Court.
I know that I neither stuffed any box with newspapers nor colluded with anybody to stuff the box with newspapers. I know as a fact that I have never been convicted of any criminal offence in my life.
I have responsible people who could stand as sureties for me if I was granted bail by this Honourable Court.
I never tempered with the investigation conducted by the EFCC while I was granted administrative bail.
I will regularly come to Court to stand trial in the charge filed against me if I was granted bail by this Honourable Court.
I verily believe all Preliminary investigations have been concluded before filling this charge against me.
I make this solemn declaration conscientiously, believing same to be true and in accordance with the Oaths Act.”
The respondent, on the other hand, has also filed a counter affidavit. As I have stated earlier, the leaned trial judge dwelt so much on the proof of evidence which he dealt with extensively thereby ignoring the affidavit evidence by the appellant.
A judicial discretion ought to be founded upon the facts and circumstances presented to the Court, from which it must draw a conclusion governed by law. A discretion must be exercised honestly and in the spirit of the law.
See UNIVERSITY OF LAGOS & ORS VS C.I.O. OLANIYAN (1985) 1 S.C 295 at 344.

It must be borne in mind that the essential difference between an arbitrary or wrongful exercise of discretion, on the one hand, and judicial cum judicious exercise of it on the other is that whereas the former is the exercise of it with either no reason at all or with wrong or insufficient, correct and convincing reason. While judicial and judicious exercise of discretion is acceptable in law, an arbitrary exercise of it is not.
In the final analysis, and as stated earlier on, and from the particulars of the offences charged, the offences are bailable in law, and the learned trial judge ought to have exercised his discretion in favour of the Appellant, in view of the content of the affidavit evidence before him. The Court of Appeal also ought to have looked at that affidavit evidence where the trial Court had failed to do so. The sole issue for determination in this appeal is hereby resolved in favour of the appellant. The appeal is meritorious and it is hereby allowed.
The Appellant is granted bail with a bond to provide two sureties in the sum of N100.000:00k each, and each one of them to submit one title document from any part of Nigeria, to be verified by Chief Registrar Supreme Court.
OLABODE RHODES-VIVOUR, J.S.C.: My lords, I have had the advantage of reading in draft the leading judgment of my learned brother, Bage JSC wherein his lordship granted the appellant bail, despite the refusal by both Courts below. I agree entirely with his lordship reasoning and conclusion.
Appeal allowed.
MARY UKAEGO PETER-ODILI, J.S.C.: I am in total agreement with the judgment just delivered by my learned brother, Sidi Dauda Bage JSC and to register that support, I shall make some remarks.
This is an appeal against the judgment of the Court of Appeal, Ibadan Division or lower Court or Court
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below delivered on the 9th December, 2015. Which affirmed the Ruling of the Federal High Court delivered on 15th June, 2015 wherein the learned trial judge dismissed the appellant’s application for bail on the ground that there were no strong and concrete reasons why the Court could exercise its discretion in favour of the appellant.
The fuller facts leading to this appeal are well captured in the lead judgment and so dispensing of the need to repeat them save for when it becomes necessary to make reference to any part of those facts in the course of this deliberation.
On the 26th October, 2017 date of hearing, learned counsel for the appellant, Ken Ahia adopted the brief of argument settled by Awa U. Kalu SAN and filed on 26th September, 2016 and the reply brief filed on 25th October, 2017 and deemed filed on 26th October, 2017. The learned Senior Advocate identified three issues for determination which are thus:
1. Whether the Court below was correct in all circumstances to have upheld the decision of the trial Court in refusing the appellant bail after finding as it did, that there were ‘Procedural missteps’ taken by the trial Court in reaching its ruling? (Ground 1 and 5).
2. Whether the Court below was correct in accepting as unchallenged paragraphs 9, 11, 12, 13 and 18 contained in respondent’s counter affidavit in opposition to the appellant’s bail application and act on the story set out by the respondent? (Ground 2).
3. Whether the Court below was correct in affirming the decision of the trial Court in the light of the provisions of Sections 158 and 162 of the Administration of Criminal Justice Act, 2015 as well as Sections 36(5) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) Grounds 3 and 4.
Adebisi Adeniyi of counsel for the respondent adopted its brief of argument filed on 23rd October, 2017 and deemed filed on 26th October, 2017. In it, were raised two issues for determination which are as follows:
1. Whether the Court of Appeal was not right in refusing to interfere with the exercise of discretion of the learned trial Judge refusing to admit the appellant to bail rending her trial. (Grounds 2, 3 and 4),
2. Whether the Court of Appeal was not right in holding that the procedure adopted by the learned trial judge in the consideration of the appellant’s application for bail did not occasion any prejudice or miscarriage of justice to warrant the setting aside of the decision of the trial Court. (Grounds 1 & 5)

From the issues as crafted on either side, I see issue one of the appellant as adequate for use in the determination of this appeal and I shall so utilise it.
ISSUE No.1
Whether the Court below was correct in all the circumstances to have upheld the decision of the trial Court in refusing the appellant bail after finding as it did, that there were “procedural missteps” taken by the trial Court in reading its ruling.

Learned counsel for the appellant contended that consolidation of suits or applications is generally made for expediency and convenience such that suits or applications having same and common characteristics of law or facts or arising from common transactions may be heard and determined at the same time in order to avoid multiplicity of actions and to economize time and costs. That it must be stated however that when a Court gives an order to consolidate suits or applications, it automatically creates a duty on itself, which it must discharge and so does not lose sight of the distinct identity of each applicant and his application in relation to other applicants and respective application. That each application remains separate and distinct and its judgment or ruling must be given separately at the end of the common trial. The reasoning being that the consolidation of suits or applications does not render evidence accepted in one evidence in the other. He cited Dugbo v Kporoaro (1958) SCNLR 180; Diab Nasr v Complete Home Enterprises (Nig.) Ltd (1977) 5 SC 1 e.t.c.

That it is for the principle above that in this instance, the trial Court erred when it fused the applications and delivered a single ruling in respect of all applications and in doing so failed to consider the affidavit and further affidavit of the appellant before refusing her bail application.
Learned counsel for the appellant contended that it is not the decision that matters but the procedure adopted in reaching the decision which is flawed as it raised the issue of a lack of fair hearing. That since the right to fair hearing of the appellant was compromised the decision cannot be sustained. He cited Inogha Mfa & Ors v Mfa Inongha (2014) LPELR 22010 (SC) per Kekere – Ekun JSC.
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For the appellant, Learned Senior Counsel stated that the major criterion for granting bail is for the accused to attend his/her trial and it is on this criterion that all other reasons hang. He cited Adamu Suleman & Anor v COP, Plateau State (2008)- LPELR-3126 SC (pt. 21).
Learned counsel for the respondent submitted that the appeal is against the concurrent findings of facts of both the Federal High Court and Court of Appeal on the ground that the appellant is not entitled to bail having regard to the materials presented before the Court and in line with the attitude of the Supreme Court over the years, this Court should not interfere with those findings being not perverse. He referred to Sobakin v State (1981) 5 SC 375; University of Lagos v Olaniyan (No. 1) (1985) 1 NWLR (pt.1)156 at 163; Minister. P.M.R v E.L. (Nig) Ltd (2010) 12 NWLR (pt. 1208) 261 at 292.
What is at play is the issue of what a Court must do when it consolidates suits and what it entails when an order of consolidation is made. A journey back in time into the facts of this case would assist and that is, that the learned trial judge on the 9th day of June, 2015 consolidated the applications for bail of all the defendants including the herein appellant and heard then. It is necessary to state that it is permissible in law to consolidate suits or applications so as to get a speedy resolution of the nagging issues and possibly remove bottlenecks or handles that might impede the main suit which would not happen where the applications and suits are to be handled separately. To get to the decision to order consolidation, the Court gets to that position satisfied that there are common questions of law or facts arising in both or all the causes or matters or even the rights to relief which are claimed in respect of or arise out of the same transactions or for some other reasons in which it makes it desirable to make an order under the rules of Court. Therefore consolidation so to speak of suits or applications is generally made for expediency and convenience such that those suits or applications having same common characteristics of law or facts or stemming from a common transaction may be heard and determined at the same time in order to avoid multiplicity of actions and to economize time and costs.
To embark on consolidation of suits or applications, the Court doing so has a bounden duty which it must discharge and that is, that each of the suits or applications must be resolved in their individual or distinct identity in that common trial. In other words, consolidation does not take away the separate identity of a particular suit or application within that grouping. Also evidence accepted in one suit or application is not evidence in any of the others. This scenario the Court must bear in mind and in sight throughout, from the beginning of the consolidation till the conclusion at the judgment stage or ruling Point. I refer to Dugbo v Kporoaro (1958) SCNLR 180; Diab Nasr v Complete Home Enterprises (Nig) Ltd (1977) 5 SC 1; Iloabuchi v Ebigbo(2000) 8 NWLR (Pt. 668) 197.

The guiding principle above stated, it turned out that in the case in hand the trial Court fused the applications and delivered a single ruling in respect of all six applications. In this error, the learned trial judge failed to consider the affidavit and further affidavit of the appellant before rejecting her bail application and this happened because that Court missed its way and referred to what was not in the affidavit of the appellant and the counter affidavit against the application. Also entered into submissions that were non-existent as counsel for the appellant made no such. The circumstances that arose showed that the Court of first instance having jumbled all the applications and treating them as one utilised facts or evidence that had no relationship or relevant to specific application of the appellant. The fall out therefore is that the right of fair hearing of the appellant had been clearly breached and the correctness of the decision was neither here nor there. This is because the proceedings having been fundamentally flawed on account of this failure to adhere to the rule of natural justice
The dictum of my learned brother, Kekere-Ekun JCS in Inogha Mfa & Ors v Mfa Inongha (2014) LPELR-22010 (SC) is apt for my use and I follow it. He stated thus:
“It is also well settled that any proceedings conducted in breach of a party’s right to fairhearing jeopardised the proceedings and nothing could come out of it.
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Any hearing, no matter how well conducted would be rendered a nullity. See Tsokwa Motors (Nig) Ltd v U.B.A Plc (2008) ALL FWLR (pt. 403) 1240 @1255 A-B; Adigun v A.G. Oyo State (1987) 1 NWLR (Pt. 53) 674; Okafor v A.G. Anambra State (1991) 3 NWLR (pt. 200) 59; Leaders & Co. Ltd. v Bamaiyi (2010) 18 NWLR (Pt. 1225) 329. It was held in recent decision of this Court in Abubakar Audu v FRN (2013) 53 NSCOR 456 @ 4691; “The law is indeed well settled that fair hearing within the meaning of Section 36(1) of the Constitution of Federal Republic of Nigeria, 1999, means a trial or hearing conducted according to all legal rules formulated to ensure that justice is done to the parties. It requires the observation or observance of the twin pillars of the rules of natural justice, namely audi alteram partem and nemo judex in causa sua. These rules, the obligation to hear the other side of a dispute or the right of a party in dispute to be heard, is so basic and fundamental a principle of our adjudicatory system in the determination of disputes that it cannot be compromised on any ground. See Nwokoro v Onuma (1990) 3 NWLR (Pt.136) 22.
The effect of a denial of fair hearing is trite in law. In order words, once there is a breach of the right of fair hearing, the whole proceeding in the course of which the breach occurred and the decision arrived at by the Court becomes a nullity.”

The situation is well cut out and clearly with the proceedings that have come unhinged, the decision of the trial Court has nothing to hang on and so the Court of Appeal was wrong to have sustained that flawed decision.
In the light of the foregoing and the better reasoning in the lead judgment, I also allow the appeal and abide by the consequential orders made.
CLARA BATA OGUNBIYI, J.S.C.: The facts of this case have been spelt out clearly in the lead judgment. The appellant is seeking bail before conviction. The determining factor is whether the appellant will avail himself for trial if bail is granted him.
It is trite law that the granting of bail in such situation is not a matter of course but is at the discretion of the Court having regard to the circumstance of the case before it.
My learned brother, Bage, JSC had dealt adequately with the case at hand and I have no reason to decide otherwise. I therefore adopt his judgment as mine and also resolve the sole issue raised in favour of the appellant.
The appeal has merit and is allowed. I hereby grant bail in terms of the lead judgment of my learned brother.
AMIRU SANUSI, J.S.C.: This appeal is against the judgment of the Court of Appeal, Ibadan division (lower Court), delivered on 9th December, 2015. In the said judgment, the lower Court affirmed the decision of Federal High Court Ibadan (trial Court) delivered on 15th day of June, 2015 which refused to admit the appellant, then applicant to bail.
The appellant as applicant at the trial Court was along with her four other colleagues arraigned before the trial Court on various allegations of crimes as adumbrated in the lead judgment. After pleading not guilty to each of the five counts, the appellant applied for bail. At the close of arguments by counsel on the application, the learned trial judge refused to grant her bail, and instead, ordered accelerated hearing.
Aggrieved by the trial Court’s refusal to admit her to bail, she appealed to the lower Court which endorsed and affirmed the Ruling of the trial Court refusing the bail. She again became disenchanted with the lower Court’s refusal to admit her to bail and then further appealed to this Court.
Briefs of argument were filed and exchanged by learned counsel to the parties. In the appellant’s brief of argument settled by Awa Uwa Kalu SAN, three issues were raised for the determination of the appeal, whereas Mr. Adebisi Adeniyi of learned counsel for the respondent had in his respondent’s brief identified two issues for the determination of this appeal. As both sets of issues had been set out in the lead judgment. I feel it will be repetitive to reproduce them here again.
Considering the circumstance of this case, I feel the germane issue calling for determination in this appeal is simply whether the lower Court acted rightly by refusing to interfere with the decision of the trial Court in refusing to admit the present appellant to bail or to put it in another way, whether the refusal to exercise the discretion to grant bail to the accused/applicant, (now appellant) by the trial Court, was correctly affirmed by the lower Court.
Section 158 of the Administration of Criminal Justice Act 2015 provides as follows:
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“When a person who is suspected to have committed an offence or is accused of an offence is arrested or detained, or appears or is brought before a Court, he shall, subject to the provisions of this Act, be entitled to bail.”
The above provision appear to be in tandem with the provisions of Section 118(2) of the Criminal Procedure Act which states that person charged with a felony other than a felony punishable with death, could be admitted to bail. There is no gain stating that the offence the appellant was facing trial on, is certainly not one attracting death punishment. With the use of the article “shall” in Section 158 of the Administration of Criminal Justice Act 2015, that presupposes that the appellant is mandatorily entitled to be granted bail by the Court right from the out set. Again, Section 162 of the same Act provides that where the offence which an applicant/accused is facing trial on or accused of committing exceeds three years punishment, as in this instant case, he shall still be admitted to bail except on some specified circumstances spelt out in Paragraphs (a) – (f) of the said sections, namely:
(a) If there is reasonable ground that the accused will commit another offence or offences.
(b) Whether he will evade trial;
(c) Whether he will influence, with influence, interfere with, intimidate witnesses and or interfere with the investigation of the case.
(d) attempt to destroy evidence,
(e) prejudice the investigation of the offence; or
(f) he will undermine or jeopardize the objective, purpose or function of criminal justice administration including bail system.
Notwithstanding the above listed conditions, the Courts are still given discretionary powers to grant or refuse bail under Section 163 of the Act. It must however be emphasized that the Bench mark of the exercise of discretion by Courts is that the decision to use discretionary powers must be exercised judiciously and judicially too. See Bamaiyi v The State (2001) 3 NWLR (pt. 715) 230; Dantata vs COP (1958) NRNLR 3 Or (2001) 4 SC NJI 126.
Thus, from the cumulative effect of the above provisions of the Act and of course, the Criminal Procedure Act, in exercising the discretion to grant bail to an applicant, the Court has a duty to consider the nature of the charge, the severity of the punishment, the character of the evidence, the applicant’s criminal record as well as the likelihood of him repeating the offence and including all the elements mentioned in Section 162 of the Act as stated supra. The trite position of the law is that in exercising the discretion to grant or refuse bail, a trial Court must consider the weight of facts deposed to in an affidavit evidence placed before it and all other requirements as highlighted supra. In this instant case, the applicant now appellant had in the affidavit sworn to by her, deposed to some far reaching averments (as shown on page 465 of the record) the conditions or requirements of Section 162 which she averred that she would refrain from committing or contravening if granted such bail. Such averments were not in any way controverted or challenged by the learned respondent’s counsel.
It is rather bizarre to note that the learned trial judge based his reason for refusing to grant bail to the applicant/appellant not on the affidavit evidence, but he merely dwelt on the proof of evidence and totally ignoring to consider the averments which are crucial and relevant for exercising his discretion whether or not to grant the bail application.
If he had duly examined, assessed and evaluated such affidavit evidence placed on his table, he would have arrived at a different conclusion.
The lower Court on its part had unfortunately, failed to advert its mind to or consider the averments in the applicant’s affidavit before affirming and endorsing the trial Court’s decision refusing to grant the bail. It merely glossed it over. I must say that there were justifiable reasons placed before the lower Court to warrant its querying, disturbing or tampering with the trial judges exercise of judicial discretion in refusing the application before him in this case.
Apropos of the above, I also see merit in this appeal. It is meritorious and is accordingly allowed by me. I am at one with the reasoning and conclusion arrived at by my learned brother Sidi Bage, JSC for allowing this appeal.
I abide by the consequential orders made in the lead judgment.

The background facts are simple and straight forward: Sometime in 2005, the Economic and Financial Crimes Commission (EFCC) received several petitions from some well-placed concerned indigenes of Abia State of Nigeria against the Appellant and some other persons. The said petitions bordered on abuse of office, corruption and money laundering. Upon receipt of these petitions, a team of investigation was constituted by the EFCC to discreetly investigate the petitions. Investigation revealed that the Appellant who was the Governor of Abia State between May, 1999 and May 2007, incorporated some limited liability Companies, one of which is SLOK NIGERIA (the 3rd respondent herein), of which he was a shareholder.
It was the 1st respondent’s case that the Abia State Government funds running into some billions of Naira in various Banks were allegedly fraudulently withdrawn aid illegally converted into drafts in favour of the personal use of the Appellant in his SLOK GROUP of Companies. Other allegations leveled against the Appellant were that he awarded the State Governments contracts to such companies as ZEROCK CONSTRUCTION Ltd, HITEC CONSTRUCTION LTD, HAPEL NIGERIA LTD and UDEX NIGERIA LTD in which he had interest. It was alleged that the contractors to whom contracts were awarded by the Appellant as the Governor, also obtained several bank drafts which were lodged into the 3rd Respondent’s account as gratifications. In view of these allegations the 1st respondent filed a criminal charge against the 2nd and 3rd respondents herein and some other officials of the Abia State Government at the Federal High Court Lagos. The name of the appellant featured in the said charge but because he was still under official immunity, as such could not be prosecuted. The said charge was later withdrawn. Subsequently, when the appellant as well as the 2nd and 3rd respondents were arraigned at the Federal High Court Abuja, he approached the Federal High Court, Lagos and the Federal High Court, Umuahia, seeking a sort of reprieve for an order to restrain, the EFCC from arresting, detaining or prosecuting him. It would appear when he failed in his bid to secure the said restraining order in these Courts, the appellant went to the Abia State High Court, Umuahia where he filed an application for enforcement of his fundamental rights. On the 31st May, 2007 , the Court made an exparte order restraining the EFCC from arresting and/order detaining him, in the following term:
“That the leave so granted shall operate as a stay of all actions or matters relating to or connected with the complaint hereof until the determination of the motion on Notice.”
The above order was relied upon by the appellant before the trial Federal High Court and the Court of Appeal to argue that he can no longer be prosecuted pending the hearing and determination of his motion on Notice. He also prayed the Court below to quash the charge against him on the ground that no prima facie case was disclosed in the entire proof of evidence.
The 1st respondent herein reacted by opposing the application to quash the charge before the Federal trial High Court. It filed a counter-affidavit with two Exhibits. In his considered ruling the learned trial judge dismissed the Appellant’s motion to quash the charges preferred against him on 8th May, 2009. The Appellant’s appeal to the Court below was further dismissed.
Dissatisfied with the judgment of the Court below the appellant further appealed to this Court vide his Notice of Appeal dated 4th day of May, 2012 containing 5 grounds. From these grounds the appellant formulated 3 issues for determination, namely:“(i) Whether the Court below was right when it held in sum that a charge preferred against an accused person contrary to the terms of an order made by a Court of competent jurisdiction is not thereby violated (Grounds 1 and 2).
(ii) Whether the Court below lawfully and dutifully considered the Appellant’s appeal without regard to all the materials placed before it, particularly Affidavit evidence (Grounds 3 & 4).(iii) Whether the Court below was right in holding that the proof of evidence discloses a prima facie case (Ground 5)
“Two issues distilled by the 1st respondent, for determination are as follows:-
“l. Whether the Court of Appeal was not right in affirming the decision of the trial High Court that the learned trial Judge was not bound by the exparte order of the High Court of Abia State as to vitiate the charges (See grounds 1,2,3, and 5)
2.Whether the learned Justices of the Court of Appeal were right in affirming the decision of the learned trial judge to the effect that a prima facie case was disclosed against the ground 4).”
It is not worthy that both the Appellant and 1st respondent raised similar issues for determination in the Court below. See page 1352 of the records. I must note however that these issues are substantially the same as the 1st respondent’s two issues before this Court. Appellant’s second issue is unnecessary embellishment of 1st Respondent’s issue

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2. In view of the foregoing, I am of the view that the two issues, namely (i) and (iii) formulated by the Appellant are quite apt to the determination of this appeal.
On the 14h day of January, 2016 when this appeal was heard, Awa U. Kalu SAN, of Counsel to the Appellant identified and adopted the Appellant’s brief of argument deemed filed on the 12th June, 2013 and the Reply brief was filed on 12th April, 2015. Without further amplifications on the issues formulated, he urged that the appeal be allowed. The brief of argument of 1st Respondent, settled by Rotimi Jacobs SAN, was identified and relied upon by Olalekan Ojo Esq, of Counsel, was equally adopted. He urged that the appeal be dismissed.APPELLANT’S ISSUE (i): Perusing the Appellant issue (i) herein, it is observed that in substance there is no difference between it and the 1st Respondent issue No.1; that is, whether the Court below did not err when it held that the charge preferred against the appellant contrary to the terms of an order made by a Court of competent jurisdiction is not vitiated. It is contended that the Court below ought to have quashed the charge or information filed by the 1st Respondent in disregard of the exparte order of Abia State High Court, made on 31st May, 2007 in the suit No.HU/177/2007. It is submitted that the position of this Apex Court with regard to existing order, judgment or ruling of a Court of competent jurisdiction, no matter how palpably null and void, unattractive, remains good law and binding until set aside by a superior or Court of competent jurisdiction. Reliance was placed on the cases of ABACHA V. FAWEHINMI (2000) FWLR (pt.4) 533 SC and BABATUNDE and ANOR V. OLATUNJI AND ANOR (2000) 2 NWLR (pt.646)60.
On his part learned counsel for the 1st Respondent submitted that obedience to Court order is crucial to the survival of any constitutional democracy.
Therefore, parties and the individuals, or government agencies must obey and comply with every subsisting order of a Court. That both the learned trial Judge and the Court below emphasized the need to comply with every subsisting order of a Court of competent jurisdiction. He referred to pages 1072-1079 and 1398 of the record for the statements of the learned trial judge and of the Court below respectively on this point’ Learned counsel for the 1st Respondent however, agrees with the Court below when considering the peculiar circumstances of the case concluded that the charges preferred against the Appellant at the Federal High Court could not be quashed on account of an exparte order made by Abia State High Court.
As I have earlier observed the real fulcrum of the Appellant’s argument is that the Court below erred when it held that a charge preferred against the Appellant contrary to the terms of an order made by a Court of competent jurisdiction is not thereby vitiated. May it be observed that at the Court below similar argument was put up by the Appellant when he argued that the trial High Court erred not to have quashed the charge or information No FHC/ABJ/ CR/56/2007, which was filed by EFCC, the lst Respondent herein, in brazen disregard of the exparte order of Abia State High Court on 31st May, 2007 in the suit No. Hu/177/2007. The same argument has been adduced before us under the Appellant’s issue 1.The Appellant’s grouse is the consequences of disobedience of Courts order by the Courts, or persons in authority, in the face of lis pendes (a pending suit).
The principle of law upon which the Appellant has relied, is stated in DANIEL VS. FERGUSON (1891) 2 CH.27 referred to, and applied in GOVERNOR OF LAGOS STATE V. CHIEF OJUKWU (1986) 1NWLR, (Pt.18) 621 and EZEGBU V. FIRST AFRICAN TRUST BANK LTD (F.A.T.B) (1992) 1 NWLR (Pt 220) 197. The principle is that whatever a litigant had done something during lis pendes calculated to over reach his adversary, would be undone or obviated by the Court in its disciplinary jurisdiction. At the trial Federal High Court, the 1st Respondent herein had persuaded the Court to adopt and apply the authorities of OLUTOLA V. UNIVERSITY OF ILORIN (2004) 18 NWLR. (Pt.905) 452 and, UWAZURIKE V. ATTORNEY GENERAL OF THE FEDERATION (2008) 10 NWLR (Pt.1096) 444 at 458-59 which held that Courts of similar or concurrent jurisdiction are not bound to follow the decision of each other. The trial Court agreed and held it was not bound by the exparte order of Abia State High Court of 31st May, 2007 in HU/I77/2007. This was what prompted the appeal to the Court below. That Court was on a firm ground when it agreed with the Federal High Court that the exparte order of the Abia State High Court would not avail the Appellant to argue that the order was binding on the Federal High Court so much as to render its warrant for the arrest of the Appellant and its proceedings in FHC/ABJ/CR/ 56 /2007 a nullity.
This case is on all fours with UWAZURUIKE V. A-G FEDERATION (2008) (Supra) wherein at pp. 458-459 the Court stated as follows:
“It is apparent that the Federal High Court, Owerri and Federal High Court, Abuja are Courts of concurrent jurisdiction, therefore the contention by the counsel for the Appellant that 1st Appellant was charged to Court maliciously in flagrant disrespect of an order of Federal High Court, Owerri cannot be correct, because Courts that are of similar or concurrent jurisdiction are not bound to follow the decision of each other. See – PROF. A.D. OLUTOLA V. UNIVERSTTY OF ILORIN (2005) 3 W. R. N. PAGE 22, (2004) 18 NWLR (PT.905) 416

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I also agree with the submission of learned counsel for the respondent that an order granted by the Federal High Court, Owerri was an exparte order for the applicant that is the 1st Appellant in this Court, to enforce his fundamental human rights. It was not order directed to the proceedings before the same Court sitting in Abuja.
Consequently it is my view that the trial Judge was right not to have given credence to the Federal High Court, Owerri as the order given by that Court was not binding on her”.
The statement in UWAZURIKE,S case (Supra) is clear that the order of a Court of co-ordinate jurisdiction like that of Abia State High Court cannot affect the proceedings before the Federal High Court because the order is not directed at the said proceedings.
The Court below, in further consideration of this point has this to say on page 1355 of the record thus
“Let it be emphasized that injunction is a remedy in person on which is directed against the litigant and not the Court: At common law, from the decision of HART v, HART LR. 18 ch. DIV.670 at 679-681 what is forbidden is an injunction to restrain a pending judicial, proceeding……… it shall not be at large and must be specific restrictions. See OZUEH V. EZEWEPUTA (2005) 4 NWLR (Pt.915) 221 at 241.
This point that an order of injunction must be identified clear and cogent was emphasized inONAGORUWA V. ADENIJI (1993) 5NWLR (Pt.293) 317 at 339 and ORHUE V. EDO (1996) 9NWLR (Pt.473) 475 at 448. Bearing in mind this principle Mr. Rotimi Jacobs, of counsel to 1st Respondent, submitted correctly in my view that the order made by Hon. Justice Kalu of Abia state on 31st May, 2007 in suit No.HU/177/2007 was at large ambiguous and non specific”.
How was the order of Abia State High Court couched. It goes thus:
“It is ORDERED that the leave so granted shall operate as a stay of all actions or matters relating to or connected with the complaint hereof until the determinations of the motion on Notice.
That the Respondent would not suffer any detriment if they are restrained from arresting, detaining or prosecuting the Appellant until he constitutionality and legality of the said threat is determined”.
The Court below describes the above order as “Creeping Order” likened to a weapon of mass destruction as it restrains everything, everyone under the earth. I agree the order is wide and at large, in view of the facts relied upon in the Appellant’s application for leave to enforce his fundamental rights to the dignity of his person guaranteed by Section 34 of the Constitution , his personal liberty guaranteed by Section 41 of the said Constitution . Paragraphs 15-18 of the appellant’s affidavit in support of the application are as follows:
“15. The Applicant has never been confronted with any allegation of criminality. That the Applicant has committed no offence.
16. The objective of the Respondents particularly the 1st Respondent is to publicly humiliated the Applicant, subject him to degrading treatment, deny his right to personal Liberty and freedom of movement
17. The consequence of the foregoing it is therefore expedient for the Honourable Court to restrain the Respondents from carrying out their treat which is calculated solely to embarrass hereof (sic)
18. That the Respondent would not suffer any detriment if they are restrained from arresting, detaining or prosecuting the Appellant until the constitutionality and legality of the said threat is determined.”
The hard facts relied upon by which the Appellant in his application for leave to enforce his fundamental rights, were because of his fear of arrest and prosecution which have the motive of publicly, humiliating, degrading and embarrassing him.
I agree with the Court below on this point when it stated on page 1357 of the records thus:
“These (allegations) are all speculations interspersed with sentiments founded largely on conspiracy theory, that is completely political it is trite that sentiments command no place in judicial deliberations. See EZEUGO V. OHANYERE (1979) 6 SC.17, MOHAMMED IDRISU V. MODUPE OBAFEMI (2004) 11 NWLR (Pt.884) 396 at 409.”
The Appellant was in Court to enforce his fundamental rights against the 1st Respondent, asserting that the alleged violation or threat to violate his rights equally violate the constitutional provisions as they relate to the rights he is seeking to protect, and he is saying that the due process of law the law has not been or will not be followed by the said 1st Respondent.
It is mere speculation for the Appellant to have thought that the Courts, particularly the Federal High Court would whimsically undermine the rights of the appellant guaranteed by the Constitution. The rights to personality and freedom of movement respectively enshrined in Sections 35 and 41 of the said Constitution are subject to the procedure permitted by law and for the purpose of bringing the Appellant before a Court of law in execution of a Court order or upon

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reasonable suspicion of his having committed a criminal offence.
I cannot fathom the reason why the Appellant is so lily-livered in a matter the law fully guarantees his constitutional rights in an event of his prosecution in the Court established by the Constitution to judiciously and judicially provide adequate facilities for his prosecution including due fair hearing as provided in S.36 of the Constitution, for the alleged offences of money laundering. I agree with the Court below that the suit No.HU/177/2007 filed at Abia State High Court by the Appellant was nothing but a “gagging suit” with the order made there from on 31/5/2007, designed to frustrate, prevent, and discourage the 1st Respondent from discharging its statutory functions. See the opinion of Lord Denning, Mr. on this point in WALLER STEINER V. MOIR (1974) 3 All ER.2L7. This important point made in this case is further restated in ATTORNEY-GENERAL V. TIMES NEWSPAPERS LTD (1973) 3 All ER. 54 at 60 per Lord Reid.
The suit of the Appellant, at Abia State High Court and the general and ambiguous order made therein from were clearly intended to “muzzle” or prevent the 1st Respondent from discharging its statutory function.
Sections 6 (m) and 46 of the Economic and Financial Crimes Commission (Establishment) Act vest in EFCC the function and duty of investigating and prosecuting persons reasonably suspected to have committed economic and financial crimes. For a person to rush to Court to place a clog or shield against criminal investigation and prosecution is a clear interference with the powers given by law and the Constitution to EFCC in the conduct of criminal investigation and prosecution. It is clearly an abuse of due process of the law. See ABACHA V. FRN. (2014) 6 NWLR (Pt.1402) 43 at 112, DARIYE V. FRN. (2015) 2 SCM P.46 at 68. ATTORNEY-GENERAL OF ANAMBRA V. UBA(2005) 15 NWLR (Pt.947) 44 at 67.
ISSUE (III) of the Appellant (1st Respondent’s issue 2).
This issue raises the question whether the proof of evidence filed by the 1st Respondent (the prosecutor) has disclosed a pima facie case against the Appellant.
Learned counsel for the Appellant has submitted that since the arrest of the Appellant and materials, placed before the trial Federal High Court were in clear disobedience of the order of Court in a pending suit (lis pendis) therefore a valid charge or information could not have been preferred against him. That till his allegation of infringement of his human rights is determined, that means that every action done after the order was a nullity.
“Prima facie” is the establishment of a legally required reputable presumption. Prima facie is not the same thing as the proof which comes later when the Court has to find whether the accused is guilty or not guilty.
The standard of proof as to whether or not the accused is guilty of the criminal allegation is one of proof beyond reasonable doubt. Section 131 of the Evidence Act 2011.
If I may recall the grounds upon which the Appellant’s Application for the enforcement of his fundamental rights in suit No.HU/177/2007 before the High Court of Abia State, Umuahia, was predicated, were inter alia.
“(i) The charge hereof and the prosecution of the 1st Accused/Applicant on the said charge breached an order of the Umuahia High Court made on 31st May, 2007 in suit No.HU/177/2007.
(ii) The Umauhia High Court in suit HU/177/2007 in a final Ruling to enforce the fundamental rights of the Applicant declared that the said charge was brought in clear, brazen and blatant disobedience to the order of the said Court made on 31st May 2007.
(iii) The subject matter of the charge, that is, alleged crime against the revenue of the Abia State Government is not within on the jurisdiction of this Honorable Court.
(iv) The said charge did not come within the province and intendment of the money Laundering (protection) Act, 2004.
(v) The proof of Evidence did not disclose a prima facie case against the 1st Accused/ Appellant.”
The fifth ground above on which the Appellant’s application was premised is the main contention of the Appellant under this issue. It is essentially challenge to the applicability of Section 14(1) (a) of the Money Laundering (Prohibition) Act 2014, to the case at hand, as it concerns the Appellant. The section provides as follows:
” 14 – ( 1) Any person who –
(a) converts or transfers resources or properties derived directly from illicit traffic in drugs and psychotropic substances or any other crime or illegal act, with the aim of concealing or disguising the elicit origin of the resources or properties or aiding any person involved in the illicit traffic in narcotic drug or psychotropic substances or any other crime or illegal act to avoid the illegal consequences of his action.
Commits an offence under this section and is liable on conviction to a term of not less than 2 years or more than 3 years.”

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Section 17 of the said Act creates the offence of conspiracy, aiding and abetting the offence of money laundering. It provides:“17. Any person who –
(a) conspires with aids, abets or counsels any other person to commit an offence, or
(b) attempts to commit or is an accessory to an act or offence, or
(c) incites, procures or induces any other person by any means whatsoever to commit any offence, under this Act, commits an offence and is liable on conviction to the same punishment as prescribed for that offence under this Act.”
See the earlier Section 16 which criminalizes the retention of the proceeds of a crime or an illegal act on behalf of another. It provides as follows:
” 16. Any person who –
(a) whether by concealment, removal from jurisdiction, transfer to nominees or otherwise retains the proceeds of a crime or suspecting that other person to be engaged in a criminal conduct or has benefited from a criminal conduct, or conspiracy aiding etc.
(b) knowing that any property either in whole or in part directly or indirectly represents another Person’s proceeds of a criminal conduct, acquires or uses that property or has possession of it, commits an offence under this Act and is liable on conviction to imprisonment for a term of not less than 5 years or to a fine equivalent to 5 times the value of the proceeds of the criminal conduct or to both such imprisonment and fine.”

The Appellant has argued that the particulars given in respect of counts 1-15, apart from being incompetent and confusing are inconsistent with the provisions of Section 17 of the Act reproduced above.
The Court below painstakingly considered the submissions of respective counsel for the parties on this point and held that there was a pima facie case disclosed against the Appellant. At page 1366 – 1369 Vol. 2 of the record the Court considered the issue on the application of Sections 14 and 17 reproduced above and held as follows:
“I do not see how the allegation is inconsistent with the provision of Section 17 of the Money Laundering (Prohibition) Act, 2004, does, in any way, mislead or confuse the Appellant. The Appellant did not say, and I cannot myself see, what makes the allegation incompetent.”
The Appellant and the 2nd and 3rd Respondents herein were arraigned before the Federal High Court on a charge containing 107 counts. The Appellant is involved on 97 of the counts, namely I – 97. Count 17 gives the straw sample of counts 17 – 44 and 65 – 97, It states as follows:
“That you ORJI UZOR KALU, UDEH JONES UDEOGU, SLOK NIGERIA LIMITED, EMEKA ABONE (now at large) and EUNICE AGWU (now at large) on or about July 7th 2005 within the jurisdiction of this Honourable Court did transfer through Manny Bank Ltd, (now Fidelity Bank plc) the sum of N12,500,000:00 (Twelve Million, Five Hundred Thousand Naira) into Slok Nigeria Ltd.’s account with First Inland Bank Plc (a company solely owned by Orji Uzor Kalu and members of his family) which formed part of the funds you illegally withdrew from the account of Abia State Government with the aim of concealing the illicit origin of the said funds and you thereby committed an offence punishable under Section 14(1)(a) of Money Laundering (Prohibition)Act, 2004.”
The ingredients of the offence under Section 14(1)(a) of the Money Laundering (Prohibition) Act (Supra) reproduced above, and as submitted by ROTIMI JACOBS SAN, of counsel to the 1st Respondent (EFCC) are that:
“(i) The accused converted transferred resources or property,
(ii) The resources or property must have been derived directly or indirectly from drugs related offences or any other crimes or illegal acts,
(iii) The conversion or transfer of the resources or property must be with the aim of:
(a) concealing or disguising the illicit origin of the resources or property or
(b) aid any person involved in any of the acts of drug related offences or any other crime or illegal act so as to evade the illegal consequences of his action.”
The Appellant’s argument that he neither had shares in nor was he the alter ego of Slok Ltd and the illegality of withdrawal of some huge sums of money from the Account of Abia State Government of which he was the Executive Governor from 1999 to 2007; all these are matters for his defence at trial. My concern at this stage is to see whether a prima facie case has been disclosed in the information and whether there is any ground for proceeding (See AJIDAGBA v IGP (1958) I NSCC 20 at 21, ABACHA v THE STATE (2000) 11 NWLR (Pt. 779) 437 at 495. What the information must disclose is not the guilt of the accused person but only a prima facie case for the accused to answer. IKOMI v THE STATE (1986) 3 NWLR (pt. 28) 340 at 376.
The Trial High Court had the proofs of evidence before it. I have taken time to read through the record of appeal

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containing the proofs of evidence and the briefs of argument exchanged and relied upon by the counsel for the respective parties. I do not agree that there is no scintilla of evidence in the proofs of evidence in support of counts 1-16. They disclose a prima facie case under Section 17 of the Money Laundering (Prohibition) Act (supra) earlier reproduced.
I have observed that the Court below, with due respect, went extra miles, in minutest details as if the appeal before it (the subject matter of the trial of the Appellant) have been completed. The Court was expected to only decide at this stage whether a prima facie case has been established against the Appellant to warrant him facing his trial. In any case, the Court rightly concluded when affirming the decision of the trial Court to the effect that a Prima facie case was disclosed against the Appellant.
In conclusion, in the light of all I have said, I cannot help but dismiss this appeal for lacking in merit.It is dismissed. I affirm the decision of the Court below which rightly affirmed the decision of the trial Federal High Court that it was not bound by the exparte order of Abia State High Court as to vitiate the charges preferred against the Appellant. It is therefore ordered that the Learned Chief Judge of the Federal High Court should assign the case to another Judge for expeditious trial.
MAHMUD MOHAMMED, J.S.C.: The lead Judgment of my learned brother Galadima, J.S.C., which has just been delivered, was read by me before today. I am in complete agreement with him in the resolution of the issues arising for the determination of this appeal and in arriving at the conclusion that the appeal ought to be dismissed. I also dismiss the appeal and abide by the consequential orders made in the lead judgment.
OLABODE RHODES-VIVOUR J.S.C.: I have read in draft the leading judgment delivered by my learned brother, Galadima, J.S.C. and I agree that there are no redeeming features in this appeal. The appeal is also dismissed by me.
NWALI SYLVESTER NGWUTA J.S.C.: I have read in draft the lead judgment just delivered by my learned brother, Galadima, J.S.C., and I entirely agree with the reasoning leading to the conclusion that the appeal is devoid of merit.
I will add a few words on issue 2 in the 1st Respondent’s Brief Argument – that is, whether or not a prima faciecase was disclosed in the proof of evidence against the appellant.
Prima facie applies as a rule of onus of evidence, It seems that the words have nor English law or in Nigerian law. In Ajidagba v. Inspector-General of Police (1958) 3 FSC 5 (1958) SCNLR 60, Abbot, FJ, said (at page 6 of the report):
“We have been at some pain to find a definition of the term ‘prima facie,. The term, so far as we can find has not been defined either in English or in Nigerian Courts.”
His Lordship then relied on an Indian case of Sher Sinsh v, Jitendranathsen (1931) 1 LR 59 Case 275 where the Indian Court held, inter alia:
“What is meant by a prima facie (case)? It only means that there is ground for proceeding… But a prima facie is not the same as proof which comes later when the Court has to find whether the accused is guilty or not guilty” (per Grose, J) and “the evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused.”
In Ikomi v. State (1986) 5 SC 226, the Supreme Court had this to say:
“The question is in all these circumstances, can it be justly said that there is nothing linking the appellants with the offence? I think there is, I hold that there was a prima facie case on the face of those proofs of evidence.., I am of the view that… all that is required at the point when a judge grants consent to prefer information is that there be evidence which requires some explanation.” (Underlining mine).
The term, prima facie case, answers the questions on the face of the proof of evidence: is there a ground for proceeding? Does the proof of evidence disclose an offence or offences and if so, is the accused linked with the offence as to require him to explain his involvement therein?
These questions raise issues of fact. The trial Court found as a fact that the proofs of evidence disclose that crimes have been committed and that, being linked with the said crimes, appellants have some explanation to make. The Court of Appeal reviewed the case and affirmed the finding of facts by the trial Court, resulting in concurrent finding of facts of the two Courts below.
Where there is sufficient evidence to support concurrent findings of facts by the trial Court and the appeal Court this Court should not disturb the findings. See Njoku & Ors v. Eme & Ors (1973) SC 293 at 306; Kale v. Coker (1982) 12 SC 252 at 271.

In the case at hand, appellants who would want to set aside concurrent findings of facts of the two Courts below failed to demonstrate any perversity in the said findings. It was not established that the said findings were bedevilled with any substantial error whether in substantive or procedural law which if left uncorrected will read to miscarriage of justice. See Bankole v. pelu (1991) 8 NWLR (pt. 211) 23;Lokoyi & Anor v. Olojo (1983) 8 SC 61 at 68.
For the above and the sound reasoning in the lead judgment l also dismiss the appeal for want of merit.
Appeal dismissed.
MUSA DATTIJO MUHAMMAD J.S.C.: I had a preview of the lead judgment of my learned brother Galadima, JSC, just delivered, I agree with the reasoning and conclusion therein that the appeal lacks merit. I dismiss the appeal too and abide by the consequential order made in the lead judgment.

At the conclusion of the investigation, the respondent filed an application before the High Court of the Federal Capital Territory for leave to prefer a charge against the appellant. A proof of evidence was prepared and attached to the application. On 13th July, 2007 leave was granted to the respondent to prefer a criminal charge against the appellant. Upon his arraignment, the appellant pleaded not guilty to all the 23 counts of the charge preferred against him. The matter was adjourned to 13th November, 2007 for the prosecution to open its case. The appellant was admitted to bail.

On 13th November, 2007 the date to which the case was adjourned for the respondent to open its case, the appellant brought a motion before the trial Court praying for an order to quash the 23 count charge against him on diverse grounds, including lack of locus standi to prosecute him and lack of jurisdiction of the trial Court to hear and determine the case. The respondent filed a counter-affidavit and a written address in opposition to the motion.
On 10th December, 2007 the learned trial Judge denied the application and dismissed same. Appellant’s appeal to the lower Court was dismissed on 17th June, 2010.

Still aggrieved, the appellant, by a notice of appeal filed on 13th July, 2007 appealed to this Court on eight grounds endorsed on the notice. From the eight grounds of appeal, learned senior counsel for the appellant distilled the following five issues for determination:
“ISSUE NO. 1: Whether the lower Court was not wrong in affirming the ruling of the trial Court that the proofs of evidence disclosed a prima facie case against the Appellant. (Distilled from Ground 4).

ISSUE NO.2: Whether the Court of Appeal was right in affirming the decision of the trial Court to assume jurisdiction to try the charges for the offences alleged against the Appellant in the light of the clear provisions, inter alia, of Sections 257(1) and 299(a)(b) and (c) of the Constitution of the Federal Republic of Nigeria, 1999 and Section 4 of the Penal Code Act. (Distilled from Grounds 1, 2 and 3).

ISSUE NO.3: Whether the lower Court was not wrong when it upheld the decision of the trial Court that the proper venue for the trial of the offences with which the appellant was charged was the High Court of the Federal Capital Territory Abuja, and by so doing, the right of the appellant to fair hearing was not infringed. (Ground 8).

ISSUE NO.4: In view of the misdirection of law committed by the learned Justices of the Court below, whether their judgment is not perverse and liable to be set aside. (Distilled from Grounds 5 and 6).

ISSUE NO.5: Whether the respondent, not being the Attorney-General of Plateau State, can without obtaining a fiat from the Attorney-General aforesaid, undertake the prosecution of the appellant based on allegation of misappropriating funds belonging to Plateau State exclusively over which the respondent has no legal backing. (Distilled from Ground 7).”
The five issues are contained in the appellant’s amended brief of argument.

In his own brief of argument, learned senior Counsel for the respondent isolated the following four issues for the Court to resolve:
“1. Whether the Court of Appeal was not right in affirming the decision of the trial High Court that a prima facie case was disclosed against the appellant in the proofs of evidence placed before the Court. (See Ground 4).

2. Whether the High Court of Federal Capital Territory, Abuja does not have the territorial jurisdiction to entertain the charge preferred against the appellant, having regard to the provision of S.257 of the 1999 Constitution and Section 4 of the Penal Code Act. (See Grounds 1, 2 and 3).

3. Whether the finding by the lower Court that the High Court of Federal Capital Territory, Abuja was the proper venue for the trial of the offences alleged against the Appellant was not right as to amount to a denial of the Appellant’s right to fair hearing. (See Ground 8).

4. Whether the lower Court was wrong in affirming the decision of the trial High Court that the Respondent herein had the requisite locus standi to prosecute the Appellant in respect of the offences charged. (See Grounds 5, 6 and 7).”

Issue 1 in the appellant’s amended brief (erroneously stated as “The second issue…”) centres on the decision of the trial Court, affirmed by the court below, that a prima facie case was disclosed in the proof of evidence against the appellant.

Learned Senior Counsel impugned the decision of the Court below for failure to properly, judiciously consider the entire processes filed by the respondent in the trial Court. He referred to Ikomi v. State (1986) 3 NWLR (Pt.28) 340, UBA Ltd v. Stalihabua GMBH & Co KA (1989) 3 NWLR (Pt.100) 374 in his argument that a consideration of application pursuant to S.185(b) of the Criminal Procedure Code involves the exercise of the Court’s discretion, a discretion that must be exercised judiciously and judicially. He referred to Duru v. Nwosu (1989) 1 NWLR (Pt.113) 24 at 33 for the definition of the expression “prima facie“.

…………………….B…………………….

He referred to counts 2, 9, 11, 13, 15, 17, 19, 21 and 23 of the charge against the appellant and submitted that a charge of criminal misappropriation contrary to S.309 of the Penal Code Act must disclose that the property in question is moveable, that the accused converted it to his own use and that he did so dishonestly. He argued that the money was not shown to have been misappropriated as there was no evidence linking the appellant with moving the money or part thereof.

Learned senior counsel referred to the counts charging Criminal Breach of Trust contrary to S.315 of the Criminal Code Act and argued that the proof of evidence does not contain a prima facie proof that the accused was either a public servant, a merchant or a factor, a legal practitioner or an agent, that he was in that capacity entrusted with the property in question or had dominion over it, and that he committed criminal breach of trust in respect of the property in question. He urged the Court to resolve the issue in favour of the appellant.

In issue 2 (to which learned Counsel referred as Issue 1), he referred to Sections 257(1) and 299(a) (b) and (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 4 of the Penal Code Act and contended that the trial Court had no territorial jurisdiction to hear and determine the case and ipso facto the Court below was in error when it affirmed the decision of the trial Court that it had jurisdiction to hear and determine the case.

He referred to S.64 of the Criminal Procedure Act Cap. C.41, LFN 2004 for the venue for the trial of criminal offences and S.4 of the Penal Code Act Cap. P.3 LFN 2004 for territorial jurisdiction of the trial Court. He drew attention to Nyame v. FRN (2010) 7 NWLR (Pt. 1193) 344 at 394-396.

According to learned senior counsel, apart from presumption there is no element of the offence which was specifically stated to have occurred in the Federal Capital Territory and that the phrase “at Abuja in the Abuja Judicial Division of High Court of the Federal Capital Territory” is a ploy aimed at “obtaining jurisdiction by manipulation.” He maintained that the finding of the lower court on prima facie case and the territorial jurisdiction of the trial Court is perverse in the sense that it runs counter to the contents of the proof of evidence before the trial Court. He urged the Court to resolve the issue in favour of the appellant.

In issue 3, learned senior counsel impugned the decision of the Court below that the trial Court is the proper venue for the trial of the offences with which the appellant was charged as a breach of the appellant’s right to fair hearing. He referred to a situation in which some elements of the offences charged occurred in one jurisdiction and the others occurred in another jurisdiction and submitted that in such a case, the doctrine of forum non convenience comes into operation. He cited Nyame v. FRN (supra).

He contended that since the majority of witnesses are officials in the service of Plateau State Government residing in Jos and the documents to be relied upon at the trial emanated mostly from Jos, the matter ought to be tried in Plateau State on the principle of forum non convenience. He relied on Nwankwo v. State (1983) 1 NCR 366 at 402.

Learned senior counsel reproduced S.36(6) of the Constitution (as amended) (learned Senior Counsel erroneously assigned the fair hearing provision in S.36(1) of the Constitution to S.36(6) thereof) and argued that a trial of the offences in the trial Court would derogate from the appellant’s right to fair hearing. He urged the Court to rely on the authorities he cited and resolve issue 3 in favour of the appellant.

Issue 4 deals with alleged misdirection in law committed by the Court below rendering its judgment perverse and liable to be set aside. He referred to pages 821-822 for instances of misdirection in law. He contended that it was a misdirection for the lower Court to rely on the case of A-G Ondo State v. A-G Federation (2002) 9 NWLR (Pt. 772) 222 at 284-285 as the facts of the case at hand are not on all fours with the facts of the case.

In issue 5, learned senior counsel argued that the respondent, not being the Attorney-General of Plateau State whose authority was not obtained, cannot prosecute the appellant on allegation of misappropriating funds belonging to Plateau State exclusively. He cited Section 211 of the Constitution for the functions of the Attorney-General of a State and S.174(1) of the Constitution (supra) the Attorney-General of the Federation and submitted that only the owner of the property has a right and locus standi to seek redress in relation to it.
He maintained that the respondent did not establish legal right or entitlement to any part or total sum of money contained in the charges. He urged the Court to resolve the issue in favour of the appellant.

In conclusion, he urged the Court to set aside the decision of the two Courts below as it is not a situation of concurrent findings of fact. He urged the Court to allow the appeal, set aside the decision of the two Courts below and strike out the case in the trial Court.

Issue 1 in the Respondent’s brief raises the question of whether or not the lower Court was right in affirming the decision of the trial Court that a prima facie case was disclosed against the appellant in the proof of evidence before the trial Court. Learned senior counsel for the respondent said that there is a concurrent finding of fact as the two Courts are ad idem that the facts in the proof of evidence are sufficient to call upon the appellant to stand trial. He referred to Sobakin v. State (1981) 5 SC 375 and reminded the Court of its practice over the years not to interfere with the concurrent findings of facts of the two Courts below.

Learned senior counsel referred to Ajidagba v. IGP (1984) SCNLR 60 for the meaning of prima facie case as indicative

…………………….C…………………….

of the fact that there is ground for proceeding, adding that prima facie case is not the same as the proof which comes at the trial. He contended that once it is shown that there are facts which clearly reveal a crime and a link between the crime and the accused person there is a prima facie case and the accused has to face his trial.

In deciding whether or not there is a prima facie case, learned senior counsel argued, the Court usually considers the entire proofs of evidence. He relied on Ikem v. The State (1986) 3 NWLR (Pt.23) 340.

Learned Senior Counsel referred to the offences charged, the statement of Mrs. Dorothy Uko at pages 136-137 of the record and S.315 of the Penal Code Act as well as the elements of the offence of criminal breach of trust. He urged the Court to reject the submission of the appellant that he was not a public servant at the material time as the appellant at page 503 Vol. 1 of the record conceded in his written statement that he was a public servant.

He referred to the 5th Schedule to the 1999 Constitution which defines public officer for the purpose of the Code of Conduct to include Governors and Deputy Governors and S.10 of the Penal Code Law Cap. 89 Laws of the Northern Nigeria 1963 for the definition of “Public Servant”; and S.10 of the Penal Code Act Cap 532 Laws of the Federation, 1990 which also defines the words ”Public Officer#8221;, and submitted that the appellant falls within the said definition.
Learned senior counsel urged the Court to hold that the Court below was right when it held that a prima facie case was disclosed against the appellant in the proofs of evidence.

Issue 2 is whether or not the High Court of Federal Capital Territory Abuja has territorial jurisdiction to entertain the cause against the appellant. Learned senior counsel referred to page 797 of the record where the Court below made a finding of fact that, inter alia:”… it is not in dispute that almost all the elements of the offence as stated in this judgment occurred in Abuja…” and contended that the said finding of fact was not challenged by the appellant.

He stated that the facts of this case are on all fours with the facts in Njovens v. State (1973) NNLR 76 at 80, Waziri v. State (1979) 3 NWLR (Pt.496) 689 at 716 and urged the Court not to depart from its decisions in the said cases. Learned Senior Counsel reproduced S.257(1) of the Constitution (supra) and argued that the territorial jurisdiction of the FCT High Court includes:
“… to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.”

He urged the Court to hold that the elements of the offences charged occurred within the Federal Capital Territory Abuja within the territorial jurisdiction of the trial Court. He urged the Court to resolve the issue against the appellant.

In issue 3 on the proper venue for the trial of the offences charged, learned senior counsel argued that apart from the fact that the appellant, a Senator of the Federal Republic of Nigeria, resides in Abuja, some of the witnesses also reside and work in Abuja and the bank where the accounts into which lodgements were made operates also in Abuja, making the doctrine of forum non convenience inapplicable. He urged the Court to dismiss the argument of the appellant which is intended to delay the hearing of the substantive case.

In issue 4 on whether or not the respondent had the requisite locus standi to prosecute the appellant in respect of the offences charged, learned Senior Counsel referred to pages 821 – 822 of the record for a summary of the resolutions of issues in contention and said that the summary was lifted from the judgment of this Court in Nyame v. FRN (supra) and argued that the summary of the judgment of this Court cannot be a misdirection as the facts of the two cases are the same substantially.
He reproduced a portion of the judgment of this Court in A-G Ondo State v. A-G Federation (2002) 10 NWLR (Pt.772) 222 at 308 and said that the reproduced portion is adaptation/application of the judgment of this Court in Nyame v. FRN (supra). He referred to and relied on page 403 of the judgment wherein this Court held that generally the power to prosecute for offence is not determined by the ownership of the property alleged to have been stolen or misappropriated. He named the determinant factors as:
(a) The nature of the offence.
(b) Where the offence is committed, i.e. the venue.
He referred to Section 13(2) of the Economic and Financial Crimes Commission Act of 2004 and submitted that the Commission is empowered to prosecute offences of financial crimes and pursuant to the powers conferred on it, the Commission has preferred the charges against the appellant.

Learned senior counsel argued that having regards to the nature of the offences charged and the place at which the offences were committed, the respondent has powers to prosecute the appellant. Relying on Nyame v. FRN (supra), learned senior counsel contended that the ownership of the stolen property cannot determine who has power to prosecute for the offences. He referred to Section 211(1) of the 1999 Constitution (supra) and debunked the argument that the power to prosecute is exclusively that of the Attorney-General of Plateau State and officers in his department.

He argued further that even if the appellant is prosecuted in Plateau State, Section 211(1) of the Constitution envisages the power of other authorities to institute criminal proceedings in Plateau State.
He relied on Comptroller of Prisons v. Adekanye (2002) 15 NWLR (Pt.290) 318 at 329, FRN v. Osahon (2006) 15 NWLR (Pt.973) 361 at 406, Pharma-Deko Plc v. NSITFB (2011) 5 NWLR) (Pt.1241) 431 at 450 – 451 and FRN v. Adewunmi (2007) 10 NWLR (Pt.1042) 399 at 427. Learned senior counsel urged the Court to dismiss the appeal and affirm

…………………….D…………………….

the decision of the Court below.

Learned senior counsel for the appellant filed a reply on points of law only in respect of the respondent’s issue 1. He submitted that a finding by the Court that a prima facie case has been disclosed in the proof of evidence is not a finding of fact but a conclusion of law. He stated that the proof of evidence constitutes facts from which a Court may draw a conclusion and such conclusion is a legal conclusion and not a finding of fact. He relied on Chinwendu v. Mbamali (1908) 3-4 SC 31 at 75, Lamai v. Orbih (1980) 5-7 SC 28; Ezeonwu v. Onyechi (1996) 3 NWLR (Pt. 38) 499 at 526.

From the above authorities, learned senior counsel submitted that the case of Sobakin v. State (supra) cited and relied on by learned senior counsel for the respondent is inapplicable. Based on the above and the argument in his brief he urged the Court to resolve the issue in favour of the appellant and against the respondent.

I have considered the issues formulated on behalf of the parties. Some of the issues overlap with a resultant repetition of the argument proffered. Some of the issues are split. For instance, in my view, the issue of venue for trial is subsumed in the issue of jurisdiction and should not have been presented as a separate issue. There is need to narrow down the issues for precision, clarity and brevity and for a judicious and proper determination of the issues in contention between the parties.
In the circumstances, I will adopt the established principle of reformulating the issues in the brief, taking care not to go outside the grounds of appeal. It is my view that the following reformulated issue will adequately dispose of the appeal:
(1) Does the proof of evidence disclose a prima facie case against the appellant?
(2) Does the High Court of the Federal Capital Territory Abuja possess the territorial jurisdiction to try the appellant on the charges filed against him?
(3) Has the Respondent power to prosecute the appellant for the offences charged?
(4) Is the High Court of the Federal Capital Territory Abuja forum non convenience for the trial?
I will resolve the four issues seriatim and in so doing I will have to walk a tight rope so as to avoid delving into the merit vel non of the charges while determining the preliminary objection.

Issue 1 is whether or not a prima facie case is disclosed in the proof of evidence before the trial court, a poser answered differently by the parties. While the appellant vigorously contended that the proof of evidence disclose no prima facie case against him the respondent maintains the contrary.

It is necessary to determine the import of the latin expressions “prima facie” and “prima facie case“. In Black’s Law Dictionary, 8th Edition at page 1228, the expression “prima facie” is defined as “at first sight; a first appearance but subject to further evidence or information”.
Consequently, “prima facie case” is defined as:
“(1) The establishment of a legally required rebuttable presumption.
(2) A party’s production of enough evidence to allow the fact-finder to infer the fact at issue and rule in the party’s favour.”
Applying the above definitions to the facts of this case, the question is whether or not there is a fact or set of facts in the proof of evidence that would require the appellant to stand trial. For instance, if the facts contained in the proof of evidence are so incredible as to be outside the realm of reality, the Court will not require an answer of the appellant.

To take a very simple example, if the allegation in the proof is that the appellant blew up the 2nd Niger Bridge or that he blew up the Kano Airport the Court would dismiss the allegations with a wave of the hand because it is a known fact that the 2nd Niger Bridge has not even been built and the Kano Airport is intact. In these instances there would be no prima facie case against the appellant.

To determine whether there is a prima facie case against the appellant, the entire processes before the trial Court – the charge, the statements of offences, the statements of prospective witnesses as well as the statements of the appellant – will be considered.

In Count 2 of the charge laid against the appellant, it was alleged that he misappropriated the huge sum of N204,000,000.00 (Two hundred and four million naira) belonging to his State Government. It was alleged that the money was paid into the account of Ebenezer Retnan Ventures. Did the entity, Ebenezer Retnan Ventures into whose account the money belonging to the Plateau State Government was paid belong to the Plateau State Government? Who operated the account – the State Government or the appellant?

The account was opened and operated, in the name of Ebenezer Retnan. Further it was opened without proper documentation. This, and similar allegations involving a whooping sum of N1,161,162,900.00 (One billion, one hundred and sixty one million, one hundred and sixty two thousand nine hundred naira only) are not allegations that can be dismissed with a wave of the hand whether they are considered collectively or individually.

…………………….E…………………….

The facts alleged against the appellant are such that if not contradicted and if believed will be sufficient to prove the case against him. See Ajidagba v. IGP (1948) SCNLR 60. The truth or falsity of the allegation is not in issue at this state, but will be determined after the parties have presented their respective cases. The lower Court gleaned through the printed record and proofs of evidence and came to the conclusion that there were enough materials in the proof of evidence to proceed with the trial of the appellant. The conclusion cannot be faulted in view of the facts in the proof of evidence.
I cannot agree more with the Court below that the proof discloses a prima facie case against the appellant and so I resolve the issue against the appellant.

Does the High Court of Federal Capital Territory Abuja have the territorial jurisdiction to try the appellant on the charges laid against him? This is issue 2.

Jurisdiction as defined in Black’s Law Dictionary, 8th Edition page 867 is the Court’s power to decide a case or issue a decree. See A-G Federation v. A-G Abia State & 35 Ors (2001) 7 SC (Pt. 1) 100 wherein this Court held that the word “jurisdiction” means the authority the Court has to decide matters before it or to take cognizance of matter presented in a formal way for its decision. See also National Bank v. Shoyoye (1977) 5 SC 181.

Territorial jurisdiction implies a geographic area within which the authority of the Court may be exercised and outside which the Court has no power to act. Jurisdiction, territorial or otherwise, is statutory and is conferred on the Court by the law creating it.

Section 255(1) of the Constitution of the Federation 1999 as amended created the High Court of the Federal Capital Territory Abuja in the following terms:
“S.255(1): There shall be a High Court of the Federal Capital Territory, Abuja.”
S.257(1) of the Constitution (supra) confers on the Court jurisdiction inter alia:
“… to hear and determine any criminal proceeding involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.”

An offence may comprise of more than one element and the constituent elements may take place in different jurisdictions. In such case the appropriate means to determine in which jurisdiction to try the accused is to identify what element of the offence in the proof occurred where. See S.4 of the Penal Code as interpreted inNyame v. FRN (2010) 7 NWLR (Pt.1193) 344 at 394-395, a case in which the facts are similar to the facts herein. See also Njovens v. The State (1973) NNLR 76 at 80.
The offence may consist of attempts at the life of the victim occurring in different jurisdictions. Any of the jurisdictions in which an element occurred has territorial jurisdiction to try the accused. This was the case inMbah v. The State (2014) 235 LRCN 1 where the first attempt on the life of the victim took place in October, 2001 in Abuja and the last and final attempt was carried out in 2003 at Aguru, Anambra State.
This Court held that the 2003 attempt on the life of the victim in Anambra State was a continuation of the earlier attempt of 2001 in Abuja and that the FCT High Court has territorial jurisdiction to try the accused. In this case, an element of the offence charged as disclosed in the proof of evidence is the operation of an account in a bank in Abuja with State funds. There is no appeal on the finding and is deemed conceded by the appellant. See Onibulo v. Nkibu (1982) 2 SC 60 at 63.

The point is crucial to the issue of territorial jurisdiction of the FCT High Court. The two Courts below made specific findings that this essential events took place within the territorial jurisdiction of the FCT High Court. The appellant did not contest the findings but kept a studied but loud silence on the issue.
It is deemed that the appellant accepted as proved the allegation that an element of the offence occurred within the territorial jurisdiction of the trial Court, (See Zacchus A. Koya v. UBA Ltd (1997) NWLR (Pt. 481) page 251 ratio 2) and I would resolve the issue in favour of the respondent and against the appellant.

Issue 3 is whether or not the respondent has powers to prosecute the appellant in view of the fact that the subject matter of the charge does not belong to the Federal Government but is the property of the Plateau State Government.
First, as rightly pointed out by the learned senior counsel for the Respondent, the offences are charged under the provisions of the Penal Code which is a Federal legislation. It is a Federal indictment and the Attorney-General of the Federation by himself or through an agent may prosecute for the offences alleged.
The owner of the subject matter of the charges is immaterial. What is material is that a Federal enactment has been violated. See S.174(1) of the Constitution of the Federation, 1999 as amended for the exercise of the power of the Attorney-General of the Federation. Subsection 3 provides:
“In exercising his powers under this section, the Attorney-General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.”
See the case of Anyebe v. The State (1986) 1 SC 87 where this Court held that the Attorney-General of Benue State had no power to prosecute an accused for an offence under S.28 of the Firearms Act, an offence created by the Act of the National Assembly except with the express authority of the Federal Attorney-General. It is a different matter if the Federal legislation was made to operate within the State. See Emelogu v. The State (1988) 5 SCNJ 79. It is not the case here.

…………………….F…………………….

It follows from the above and this was the opinion of this Court in A-G of Ondo State v. A-G of the Federation(2009) 90 NWLR (Pt.772) 222 at 308 that “generally speaking, power to prosecute for an offence is not determined by the ownership of the property allegedly stolen or misappropriated…” The determining factors are:
(a) Who can exercise prosecution power over the offence,
(b) The nature of the offence charged and,
(c) Where the offence was committed-the venue.

The offences in the indictment against the appellant are financial crimes and under S.13 (2) of Economic and Financial Crimes Act, 2004 the Commission has powers to prosecute the appellant. The institution of proceeding against any person before any Court in Nigeria other than a Court Martial is not the exclusive prerogative of the Attorney-General of the Federation and/or his counterpart in the State. S.174 (1)(b) and (c) and S.211(1)(b) and (c).
It is my view that the Respondent has powers to prosecute the appellant directly or through an agent. I resolve the issue against the appellant.

Issue 4 is whether, as argued by the appellant, the High Court of the Federal Capital Territory Abuja, is forum non-convenience. In other words, is the trial Court unsuitable for the trial of the appellant. See Black’s Law Dictionary, 8th Edition 680. The expressions “suitable and convenience” associated with a determination of forum convenience and forum non-convenience refer, in my view, to the person standing trial.

The question is whether or not the venue for the trial is suitable or convenient for the accused who is to stand trial. In the case at hand, key witnesses in the case are staff of the Bank in which the appellant operated the account of his company. The bank is domiciled in Abuja where the said staff reside. Most of all, the appellant, a Senator of the Federal Republic of Nigeria, resides in Abuja within the jurisdiction of the trial Court.

To move the trial to Plateau State on the flimsy excuse that the documents relevant to the case are in Jos is, on the facts before us, an exercise in forum shopping, nor can the charge be struck out on the basis of forum non-convenience. I resolve the issue against the applicant.

Before I conclude this judgment, I will make a few observations:
The language employed by the learned senior counsel for the appellant is inappropriate and smacks of allegation of impropriety against his brother Silk. Manipulation in the context of this case connotes some sort of moral turpitude. The duty of the prosecuting counsel is not to win, but to place all the relevant facts before the Court to enable it decide the merit vel non of the case. Manipulation of the facts implies a deliberate distortion of the facts to mislead the Court in its decision and this would amount to unethical conduct on the part of a prosecuting counsel.

Trial in the case was to start on 13th November, 2007 about eight years ago. The trial is yet to start. The issues raised in this application could have been properly raised in a no-case submission at the end of the prosecution’s case; or in the defence of the appellant if called upon to defend.
In essence, learned senior counsel is asking the Court to set aside its landmark decision in such case as Patrick Njoven v. The State (supra) and Nyame v. The State (supra). In Nyame’s case, the facts are on all fours with the facts of this case. And there is no tenable reason for this Court to go back on its earlier decision on the points raised in the application.

It is not the duty of learned Counsel to resort to motions aimed principally at delaying or even scuttling the process of determining whether or not there is substance in the charges as laid. In my view, this motion is a disservice to the criminal process and a contemptuous lip service to the fight against corruption. The tactics employed here is only one of the means by which the rich and powerful cripple the criminal process.

There are cases where the accused develop some rare illness which acts up just before the date set for their trial. They jet out of the country to attend to their health and the case is adjourned. If the medical facilities are not available locally to meet their medical needs it is only because due to corruption in high places the country cannot build proper medical facilities equipped with the state of the arts gadgets. There should be no clog in the process of determining whether or not a person accused of crime is guilty irrespective of his status in the society.
Let me trace the genesis of this appeal.

The trial Court, having considered the application before it, granted leave to the respondent to prefer the charge against the appellant. Upon his arraignment in July, 2007 appellant appeared to have seen no defect in the charge and joined issue on each of the 23 counts of the charge with the respondent.

On the day slated for the trial to open, 13/11/2007, the appellant reversed himself, as it were, and filed an application urging the Court to quash the charge laid against him for the various reasons stated in the application. The trial Court heard the application and made a considered ruling dismissing same.

Appellant appealed to the Court of Appeal and the said Court dismissed the appeal and affirmed the decision of the trial Court. Appellant then appealed to this court. Meanwhile, the case instituted in 2007 is yet to take off. In my view and in view of the facts herein, the sole aim of the appellant is to stall the hearing in the charge laid against him. Now the

…………………….G…………………….

appellant has come to the last bus stop in his journey to scuttle his trial.

Predictably, he may open another avenue to derail the criminal justice delivery system in his case. He is using the rules of law to fight the law for justice delayed, not to mention unduly delayed, is a mockery of justice. He embarked on this unnecessary long journey despite the fact that any mistake in the particulars of the charge will render the whole proceedings liable to be quashed at the end of the trial. See Okeke & Ors v. I.G.P. (1965) 2 All NLR 81, Queen v. Gbadamosi (1959) 4 JSC 181.

The same applies to the issue of jurisdiction. A trial conducted without jurisdiction is a nullity, irrespective of how well it is conducted. See Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350, Osa v. Akureju (1989) 3 NWLR (Pt. 84) 508.

When a Court has granted leave to prefer a charge, dismissed the application to quash the charge and this decision was affirmed on appeal, the gain in avoiding a trial on a charge perceived to be incompetent ought to be weighed against the possibility of standing two trials in place of one. In this case, the appeal up to the Supreme Court has taken more time and expenses than the actual trial would have taken.

Lawyers are engaged to espouse the case of their clients. It is a monopoly and they should bear in mind that like all monopolies, their conduct are subject to strict rules of accountability for adherence to set ethical standards. They can fight the cause of their clients but as lawyers they must act within the rules regarding ethical conduct. They owe a duty to their client but they owe a higher duty to a higher cause-the cause of justice.

In conclusion, all the issues having been resolved against the appellant, the appeal is completely bereft of merit and it is hereby dismissed. The judgment of the Court below which affirmed the judgment of the trial Court is affirmed.

The High Court of the Federal Capital Territory Abuja can now proceed with the trial of the appellant on the charges laid against him.
Appeal dismissed. Trial of the appellant to commence.

M. S. MUNTAKA-COOMASSIE, J.S.C.: The appellant, the then Governor of Plateau State of Nigeria was accused of various allegations bordering on money laundering, abuse of office and various forms of corruption. The petition was referred to the Economic and Financial Crimes Commission (EFCC) for the purposes of investigation and possible prosecution.

At the end of their investigation the EFCC, the respondent filed an application before the High Court of the Federal Capital Territory to prefer charges against the appellant. Application was granted. Applicant applied to quash the charge. Application was denied. He appealed to the Court of Appeal.
The Court of Appeal Abuja Division, court below for short, affirmed the decision of the trial court.
Aggrieved, the appellant, Joshua Chibi Dariye appealed to this court. The appellant adopted his brief of argument before us on 27th November, 2015. The respondent also did the same.

We had a conference on this appeal. My learned brother Ngwuta was kind enough to allow me to have a preview of his leading judgment. I entirely agree with his lordship reasoning and conclusions leading him to dismiss the appeal. I also dismiss this appeal in its entirety. The matter should expeditiously commence before the trial court. The matter could still come on appeal by the prosecution or the accused person/respondent.

OLABODE RHODES-VIVOUR, J.S.C.: I read in draft the leading judgment prepared by my learned brother, Ngwuta, JSC. So completely do I agree with it that I can only make observations on a very disturbing trend in our criminal justice system.

The appellant was at one time the Governor of Plateau State in Nigeria. He was accused by the Economic and Financial Crimes Commission (EFCC) of offences concerning, but not limited to abuse of office, money laundering, and corruption. Criminal charge/s were brought against him in 2007 and since then he has tried all means known to law to quash the charge/s against him. The trial court and the Court of Appeal were of the view, and rightly too, that the appellant should defend himself before the court, as there is nothing to show a fair trial is not guaranteed.

It has been the practice since the third Republic commenced in 1999 for well to do individuals who face criminal cases, to ensure such trials never proceed. This is done by filing in court relevant and irrelevant applications, appeals all designed to stop the trial from proceeding to conclusion. This is a disturbing trend that has been allowed to fester for too long. The courts should rise and stop this disturbing trend in our criminal justice system. Happily, both courts below and this court have done so in this case. There is no merit whatsoever in this appeal. The Federal High Court should proceed with the trial forthwith.

For this, and the comprehensive reasoning in the leading judgment the appeal is dismissed.

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KUMAI BAYANG AKA’AHS, J.S.C.: I had a preview of the judgment of my learned brother, Ngwuta JSC. I agree that the appeal is bereft of any merit and should be dismissed. I wish to comment briefly on issue 2 which is whether the Court of Appeal was right in affirming the decision of the trial Judge to assume jurisdiction to try the charges for the offences alleged against the appellant in the light of the clear provisions inter alia, of Sections 257(1) and 299(a), (b) and (c) of the Constitution of the Federal Republic of Nigeria 1999 and Section 4 of the Penal Code Act.

Contrary to the submission of learned senior counsel that the statements of the witnesses and documents exhibited including the Bank cheques/instruments never linked the appellant with Abuja and he was never linked with any offence that originated in the Federal Capital Territory Abuja, the statements and documents which supported the allegation of criminal misappropriation in counts 2, 9, 11, 13, 15, 17, 19, 21 and 23 show that the various amounts were paid by draft into the account of Ebenezer Retnan ventures in All States Trust Bank in Abuja which is owned by the appellant. To graphically illustrate the point as contained in count 2 a Lion Bank of Nigeria Plc cheque for N204,000,000.00 (Two Hundred and Four Million Naira) only was raised by the Accountant-General of Plateau State and sent to Diamond Bank with instructions to issue a Bank Draft in favour of All States Trust Bank Plc payable at Abuja (See pages 362, 363 and 399 of the records). The said draft was cleared and deposited in the account of Ebenezer Retnan Ventures on 17/5/2001 (See page 438 of the records). The witness statement of Mrs. Dorothy Uko shows that the person who operates the account called Ebenezer Retnan Ventures domiciled at Abuja Wuse Zone IV is the appellant. (pages 136 -137 of the records). There is an unbroken link from when the money left the custody of the Accountant-General of Plateau State and its final destination in the account of Ebenezer Retnan Ventures in the All States Trust Bank Plc. Abuja.
Consequently the High Court of the Federal Capital Territory Abuja could exercise territorial and subject matter jurisdiction over the trial of the appellant.

The objection raised by the appellant regarding his arraignment and trial by the Economic and Financial Crimes Commission before the High Court of the FCT were also raised in Nyame vs F.R.N. (2010) 7 NWLR (Part 1193) 344. In that case, as in this one, the appellant had filed a motion seeking to quash all the forty – one (41) count charge preferred against him, after the High Court of the Federal Capital Territory, Abuja had granted leave to prefer the said criminal charges against him pursuant to Section 185(b) of the Criminal Procedure Code. The appellant argued that there was failure to disclose a prima facie case against him and for want of jurisdiction and competence to adjudicate on the case as constituted. The grounds of the application were inter alia that since none of the proceedings, offences or elements thereof originated at the Federal Capital Territory, Abuja, then by the provisions of Section 257(1) and (2) of the 1999 Constitution, the High Court of the Federal Capital Territory had no jurisdiction to entertain the case; that only the High Court of Taraba State sitting at Jalingo had the requisite jurisdiction to try the case as constituted against the appellant in accordance with Sections 272 and 299 of the 1999 Constitution since all the offences and elements thereof originated in Taraba State and the respondent lacked the locus standi to prosecute the charges thus depriving the trial court of jurisdiction to try the case. The application was dismissed as lacking in merit. The trial court held that the power to prosecute for offences committed within the Federal Capital Territory is exercisable by the Federal Republic of Nigeria through either the Attorney-General of the Federation or any other Federal Government agency vested with prosecutional powers and consequently, the respondent had the required locus standi to initiate and prosecute the appellant. The trial court further held that from the proofs of evidence which accompanied the charge, it was satisfied that a prima facie case sufficient to put the appellant on trial had been established. The appellant who was not satisfied appealed to the Court of Appeal and later to this Court but the appeals were dismissed. In this Court Sections 257(1) and (2) of the 1999 Constitution and Section 4 of the Penal Code, Cap. 532 Laws of the Federation of Nigeria, 1990 were considered.

Section 257 (1) and (2) of the 1999 Constitution provides:
“257 (1) Subject to the provisions of Section 251 and any other provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of the Federal Capital Territory Abuja shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty forfeiture, punishment or other liability in respect of an offence committed by any person.
(2) The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of the Federal Capital Territory, Abuja and those which are brought before the High Court of the Federal Capital Territory, Abuja and those which are brought before the High Court of the Federal Capital Territory, Abuja to be dealt with by the Court”.

Section 4 of the Penal Code, Cap. 532, Laws of the Federation of Nigeria 1990 states:
“4 (1) Whereby the provisions of any law of the Federation the doing of an act or making of an omission is made an offence, those provisions shall apply to every person who is in the Federal Capital Territory, Abuja at the time of his doing the act or making the omission.
(2) Where any offence comprises several elements and any acts, omissions or event occur which, if they all occurred in the Federal Capital Territory, Abuja would constitute an offence, and any of such acts, omission or event occur in the Federal Capital Territory, Abuja, although the other acts, omissions or events, which if they occurred in the Federal Capital Territory, Abuja would be elements of the offence, occur elsewhere than in the Federal Capital Territory Abuja, then:
(a) if the act or omission, which in the case of an offence committed wholly would be in the initial element of the offence occurs in the Federal Capital Territory, Abuja, the person who does that act or makes that omission is guilty of an offence of the same kind and is liable to the same punishment as if all subsequent elements of the offence occurred in the Federal

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Capital Territory Abuja; and
(b) if that act or omission occurs elsewhere than in the Federal Capital Territory Abuja and the person who does an act or makes that omission afterwards enters the Federal Capital Territory Abuja, he is by such entry guilty of an offence of the same kind and is liable to the same punishment as if that act or omission had occurred in the Federal Capital Territory, Abuja and he had been in the Federal Capital Territory Abuja when it occurred.”

The arguments in this appeal are a rehash of the arguments raised in the Nyame’s case and since the facts and circumstances that prevailed in the Nyame’s case are present in this case, the outcome in the earlier case will apply mutatis mutandis to the present appeal.

For the reasons I have stated in this judgment and the more detailed reasons contained in the judgment of my learned brother, Ngwuta JSC, I too find no merit in the appeal. I hereby dismiss the appeal and direct that the appellant should be arraigned before the High Court of the Federal Capital Territory, Abuja to face his trial.

CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading the draft of the leading judgment which my noble Lord, Ngwuta JSC, just delivered now. I am persuaded by His Lordship’s most eloquent reasoning and compelling conclusion.

I have noticed a most worrisome trend in recent times, Affluent Nigerians, particularly, the politically-exposed citizens of this great country, imagining that they are above the laws of the land, have perfected some awkward and graceless tactics of delaying their trial when they run into conflict with our penal statutes. The appellant in this appeal falls into this category. In 2007, about eight years ago, leave was granted to the respondent to prefer criminal charges against him. He was, duly, arraigned before the High Court of the Federal Capital Territory, Abuja (hereinafter, simply, referred to as “the lower court”). He pleaded not guilty.

However, on November 13, 2007, the date set aside for the Prosecution to marshal its witnesses, he [the appellant] implored the trial court to quash the numerous charges against him on the grounds, inter alia, that the trial court lacked the jurisdiction to hear and determine the charges against him.

When his application was dismissed, he proceeded to the Court of Appeal, Abuja Division (in this judgment, simply, referred to as “the lower court”) which heard and dismissed his appeal. Instead of returning to the trial court to face his trial, he appealed against the lower court’s judgement. The leading judgment has reformulated the issues for determination thus:
1. Does the proof of evidence disclose a prima facie case against the appellant?
2. Does the High Court of the Federal Capital Territory, Abuja, possess the territorial jurisdiction to try the appellant on the charges filed against him?
3. Has the respondent power to prosecute the appellant for the offences charged?
4. Is the High Court of the Federal Capital Territory, Abuja, forum non convenience for the trial?

I, entirely, agree with the leading judgment that the Prosecution’s case discloses a prima facie case, see, for example, count two of the charge. Ever since Abbot FJ, in Ajidagba v. Police (1958) 3 FSC 5, approvingly, adopted the definition of the phrase “prima facie” case from the Indian decision in Sher Singy v Jitendranathsen (1931) I.L.R. 59 Calc 275, subsequent decisions have, consistently, endorsed it.

It simply comes to this: evidence discloses a prima facie case when it is such that if un-contradicted and if believed, will be sufficient to prove the case against the defendant. Ohwovoriole v FRN [2003] 2 NWLR (pt.803) 176; [2003] 1 SC (pt.1) 1; (2003) LPELR-SC.392/2001; Ajiboye v State [1994] 8 NWLR (pt.364) 587; Ekwunugo v FRN[2008] 15 NWLR (Pt.1111) 630; [2008] 7 SC 196; Tongo v COP (2007) LPELR-SC.105/2000; Abacha v State [2001] 3 NWLR (Pt.699) 35; Daboh v State [1977] 5 SC 197. Upon its painstaking examination of the proof of evidence, the lower court endorsed the trial court’s position that it discloses a prima facie case against the appellant. I entertain no doubt that the lower court was right in so doing.

On the questions of territorial jurisdiction of the trial court and whether the said trial court could hear and determine the charges against the appellant, it suffices to re-iterate the views of this court in Nyame v FRN (2010) All FWLR (Pt.527) 618, where Adekeye JSC laid down a very illuminating guide on how to resolve the issue of venue of trial of an accused person. According to the legal Amazon:
Whenever the issue of the venue of the trial of an accused person comes up for determination, the most appropriate way of resolving the issue is to identify the offences charged and the elements of same as contained in the proof of evidence with a view to determining whether any of the acts constituting the offence occurred in the particular place where the accused is being tried.

The leading judgment has, methodically, identified the offences charged and their elements as contained in the proof of evidence, I am in agreement with the conclusion that the lower court, rightly, affirmed the trial court’s ruling that it was, properly, seised of the matter. It is for these, and the more detailed reasons in the leading judgement that I, too, shall dismiss this appeal as wholly, unmeritorious. The appellant should return to the trial court forthwith, to face his trial.
Appeal dismissed.