ALEX v. F.R.N

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CHIMA CENTUS NWEZE, J.S.C.(Delivering the Leading Judgment): At the High Court of Lagos State, a Nine Count Information was preferred against the appellant here and others. Sometime in 2014, precisely, on October 28, 2014, the Prosecution filed an Amended Information. As he did with regard to the earlier Information, the appellant sought for an order quashing the charge preferred against him – an application that was dismissed on February 17, 2016. Having unsuccessfully challenged the said Ruling of the High Court throughout this judgment, simply, called [“the trial Court”] at the Court of Appeal, Lagos Division, [hereinafter referred to as “the lower Court”] the appellant has now, approached this Court, urging it to set aside the decision of the lower Court.
He seeks the Court’s determination of the two issues which he framed thus:
1. Whether the Court of Appeal was right when it held that the Lagos High Court can exercise criminal jurisdiction in this matter considering that the subject matter of Charge No. ID/120C/2012 which borders on admiralty operation, oil and gas, revenue of the Federal Government?
2.Whether the Lower Court was right to hold that the information and proof of evidence in this case have disclosed a prima facie case against the appellant to warrant his trial thereon?
On behalf of the respondent, the following two issues were presented for the determination of the appeal, viz;
1. Whether the Court of Appeal was not right in upholding the decision of the High Court of Lagos State that it had the jurisdiction to entertain the Information contained in Charge No ID/120C/2012 bordering on the offences of obtaining money by false pretence under the Advance Fee Fraud and other Fraud Related Offences Act, 2006; forgery, uttering and conspiracy under Sections 467 and 468 of the Criminal Code, Cap C17, Volume 2, Laws of Lagos State, Nigeria, 2003?
2. Whether the Court of Appeal was wrong in holding that having regard to the Information and the proof of evidence filed along with the Information, a Prima Facie case is disclosed against the appellant to warrant his trial?
Upon my intimate reading of the principal complaints in the Notice and Grounds of Appeal, I am of the humble view that the two issues of the respondent, neatly capture the appellant’s grouse against the lower Court’s judgment. They would, therefore, be adopted in the disposal of this appeal.
ARGUMENTS ON THE ISSUES
ISSUE ONE
Whether the Court of Appeal was not right in upholding the decision of the High Court of Lagos State that it had the jurisdiction to entertain the Information contained in Charge No ID/120C/2012 bordering on the offences of obtaining money by false pretence under the Advance Fee Fraud and other Fraud Related Offences Act, 2006; forgery, uttering and conspiracy under Sections 467 and 468 of the Criminal Code, Cap C17, Volume 2, Laws of Lagos State, Nigeria, 2003?

APPELLANT’S SUBMISSIONS
At the hearing of this appeal on November 15, 2017, learned Counsel for the appellant adopted and relied on the Brief and Reply filed on November 15, 2017. With regard to the first issue, it was contended that Section 251 of the Constitution confers exclusive jurisdiction on the Federal High Court in respect of causes and matters specified therein. He also, referred to Section 251 (1) (a) (g) and (n) in support of the contention that only the said Court can exercise jurisdiction in matters under the said sections, citing Section 251 (3).
Learned counsel canvassed the view that Section 251 (supra) confers exclusive jurisdiction, civil and criminal, with respect to all the items therein. He maintained that Section 272 is dependent on Section 251, Oke v Oke (1974) 1 All NLR (pt t) 443; LSDPC v Foreign Finance Corporation [1987] 1 NWLR (pt 50) 413; Aqua Ltd v Ondo State Sports Council[1988] 4 NWLR (pt 91) 577; Idehen v ldehen (1991) 6 NWLR (pt 198) 382; Labiyi v Anretiola [1992] 8 NWLR (pt 258) 139. He also, cited decisions that defined the word “exclusive.”
It was further, contended that, by virtue of Section 251 (1) and (3) (supra), trial of matters, whether civil or criminal, that border on admiralty operation; oil and gas; revenue of the Federation, can only be determined by the Federal High Court. He maintained that crime cannot be committed without a subject matter. In his view, it cannot be correct that the Administration of Criminal Justice Act [ACJL] has, generally, defined the offence of stealing and thus anyone alleged to have stolen anything at all can be arraigned before the High Court of Lagos State.

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Learned counsel observed that the Criminal Code, equally, contains a general definition of stealing. According to him, since the Criminal Code, applicable to the Federal High Court, contains the offence of stealing, all items in Section 257 (supra) can only be tried by the Federal High Court,FRN v Ibori (2014) 13 NWLR (pt 1423) 168. In his view, the Lagos High Court has no such jurisdiction over the matters.

He contended that the intendment of the Constitution was to divest the State High Court of jurisdiction in matters relating to mines and minerals, including Oil Fields, Oil Mining, geographical surveys; natural gas as well as revenue of the Federal Government. He submitted that the Lagos High Court does not share concurrent jurisdiction with the Federal High Court, Araka v Egbue [2003] 17 NWLR (pt B4B) 1, 21; also, Section 8 (1) of the Federal High Court Act.
He urged the Court to hold that the trial Court does not possess the requisite jurisdiction in matters under Section 251 (supra), NNPC and Anor v Orhiowosele and Ors [2013] (sic) NWLR (pt 1371) 224 -226.
RESPONDENIT’S ARGUMENTS
On his part, learned senior counsel for the respondent, Rotimi Jacobs, SAN, adopted the respondent’s brief filed on September 26, 2017. He first, referred to pages 1634 -1636 of the record for the view of the lower Court that the trial Court has the jurisdiction to hear and determine the matter, He pointed that this Court can only disturb the above findings and conclusion of the lower Court with that of the trial Court if they are perverse.
He drew attention to the decision of this Court in FRN v Okey Nwosu [2016] 17 NWLR (pt 1541) 226, 304 -305; 290 291. He explained that, even under the 1999 Constitution, the extent of the limited jurisdiction of the Federal High Court in criminal matters has not been tampered with, citing Queen v Owoh (1962) NSCC 416; The State v Williams [1978] NSCC 38; Akwule v The Queen [1963] NSCC 157.
Citing Section 286 of the Constitution, he contended that the State High Court may be conferred with the power, by an Act of the National Assembly, to try federal offences, Section 286 (1) (b) (c ) and (2) of the Constitution; AG, Ondo State v AG, Federation [2002] 9 NWLR (pt 772) 222, 308. In his submission, the intention of the Constitution is not to confer exclusive jurisdiction on the Federal High Court to try federal offences; also, Section 174 of the Constitution.
He canvassed the view that, on the contrary, the Constitution set out to create federal Courts for federal civil matters: an intention not expressed with regard to criminal matters. He maintained that, from the provisions of Section 2 (i) of the Criminal Code Act, the Criminal Code, scheduled to the Act, is partly a state law and partly a federal law to the extent specified in Subsection 2 of the section.
He pointed out that the offences contained in the Information filed against the appellant are the offences of forgery, uttering and conspiracy under Sections 467 and 468 of the Criminal Code and obtaining money by false pretence under the Advance Fee Fraud and other Fraud Related Offences Act, a mere reproduction of Section 419 of the Criminal Code. In his submissions, these sections of the Criminal Code are outside the sections outlined in the Laws of the Federation. Accordingly, the Federal High Court cannot rely on Section 7 (4) of the Constitutive Act to exercise jurisdiction in respect of the offences prescribed under Sections 419, 467 and 468 of the Criminal Code Law of Lagos State. He urged the Court to dismiss the appeal.
APPELLANT’S REPLY
In the reply brief, counsel cited Eze v FRN [1987] (sic) (Pt 51) 506; Mandara v AG, Federation (1984) 4 SC 8. In his submission, the use of the phrase “notwithstanding” makes it cogent irrespective of all other legislation in the Constitution,Garba v Mohammed and Ors (2016) LPELR -40612 (SC).
Without inviting the Court to overrule its recent decision on Section 251 (1) and (3) [FRN v Okey Nwosu, supra], he devoted paragraphs 1.02 – 1.08, of the Reply brief to arguments that fly in the face of ratio decidendi in the saidFRN v Okey Nwosu (supra). He canvassed the view that where the proof of evidence fails to disclose an offence known to law, it would be quashed, Abacha v State (2002) 11 NWLR (pt.779) 437; Ohwovoriole v FRN [2003] 2 NWLR (pt 803) 176,

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RESOLUTION OF THE ISSUE
My Lords, in Abubakar and Anor v Usman and Ors (2017) LPELR -41915 (SC) 7 -16; B -E, I expressed the view that:
…it is rather strange that [counsel] opted to bother this Court with this appeal woven around the propriety of appealing against the judgment of the lower Court in… a question that has been, adequately, addressed in the judgments [of this Court]….
Although I am tempted to do so, I refuse to entertain the misgiving that [counsel’s] agitation of this same question in this appeal was a deliberate attempt to put the consistency of this Court’s reasoning to test.
This would appear to be the situation in this case. In FRN v Okey Nwosu (supra), this Court laid the arguments, such as were canvassed by the appellant’s counsel in this case, to rest. In the said FRN v Okey Nwosu (supra), this Court dealt with the interface between Sections 251 (1); 251 (3) and 272 of the Constitution in these appetizing words:
In criminal law and the administration of criminal justice, the determination of jurisdiction will be taken in the light of the enabling law setting out the jurisdiction vis-a-vis the charge preferred against the accused [person]. Section 272 of the Constitution is also relevant. The charge before the Court is what determines its jurisdiction.
While Section 251 (1) of the Constitution confers exclusive jurisdiction in civil matters in respect of items listed as (a) – (s),Section 251 (3) does not however confer exclusive jurisdiction on the Federal High Court in criminal causes and matters listed in Subsection (1). By the use of the phrase ‘the Federal High Court shall also have and exercise jurisdiction’ can only mean that other Courts apart from the Federal High Court can exercise jurisdiction also in respect of criminal matters relating to matters listed in Section 251 (1). The phrase ‘to the exclusion of any other Court’ is omitted deliberately…
[FRN v Okey Nwosu, supra 304; italics supplied for emphasis] According to the Court:
Section 251 of the 1999 Constitution as amended, Section 7 of the Federal High Court Act which is ipsisima (sic) verba to it, Section 272 of the Constitution which provide for the jurisdictions of the Federal High Court and the trial Court, respectively, are not self -executing. It is true that the sections have spelt out instances when the Federal High Court and the trial Court may assume jurisdiction. The provisions however remain dormant until the National Assembly and the Lagos State House of Assembly make laws in their respective areas of competence to create offences by virtue of which the Courts would exercise jurisdiction. The 1999 Constitution in Section 4 (6) vests legislative powers of a State of the Federation in the House of Assembly of the State. By Subsection 7 of the same section, the Assembly is empowered to make laws for the peace, order and good government of the State and any part thereof with respect to any matter not included in the Exclusive legislative list and any other matter with respect to which it is empowered in accordance with the provisions of the Constitution. Thus where as in the instant case the Lagos State House of Assembly competently makes laws creating offences in respect of which Courts in the State may assume jurisdiction, the jurisdiction as vested abides. The jurisdiction of the trial Court as spelt out under Section 272 of the 1999 Constitution operates subject to the restriction placed on it by Section 251 (2) and (3) of the same Constitution. The latter subsection vests criminal jurisdiction in the Federal High Court regarding all the items for which the Court is conferred exclusive civil jurisdiction under Section 251 (1)…
[FRN v Okey Nwosu supra at 290].
These authoritative pronouncements ought to stem the sort of submissions that prompted the judgment of the lower Court culminating to this appeal. It is hoped that counsel would, in future, properly advise their clients to take their trials and not resort to these kinds of professional shenanigans only designed to delay the proceedings at the trial Court. A word is enough for the wise. I find no merit in the tenuous and misleading submissions on this issue.
ISSUE TWO
Whether the Court of Appeal was wrong in holding that having regard to the Information and the proof of evidence filed along with the Information, a prima Facie case is disclosed against the appellant to warrant his trial?
APPELLANT’S SUBMISSIONS
On this issue, counsel cited Ikomi v State [1986] 3 NWLR (pt 28) 340 and Abacha v State [2002] 11 NWLR (pt 779) 437. He submitted that there is nothing linking the appellant with the offences charged. He, equally, devoted paragraphs 2.00 – 2.09 of the Reply brief to this issue.

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RESPONDENT’S ARGUMENTS
Rotimi Jacobs, SAN, for the respondent, prayed in aid Section 260 (2) of the ACJL of Lagos State. He pointed out that the appellant never allowed the Prosecution to open its case before the issue of non-disclosure of prima facie case canvassed. He submitted that, by Section 260 (2) (supra),Ikomi v State (supra) and Abacha v State (supra) are now inapplicable in respect of Information preferred at the High Court of Lagos State.
He cited pages 1641 – 1643 of the record. He contended that prima facie simply means that there is ground for proceeding with the trial. He explained that, as the Head of the Financial Control of the fourth defendant, the appellant qualifies as one of the directing minds of the company. He referred to an avalanche of documents submitted to the PPPRA: documents which were not genuine, pages 304, 338, 377 and 377 of the proof of evidence; the appellant’s admission, page 59 of Vol. 1 of the record; the appellant’s statements, pages 32 -59 of Vol. 1 of the record.
He explained that the appellant and the other defendants were charged under Section 1(3) of the Advance Fee Fraud and Other Related Offences Act, 2006. He also, cited Section 10 of the same Act. He opined that having to Section 10 (supra), the prosecution of offences under the Act is not limited to body corporate. He finally, submitted that the appellant and the other defendant qualify as parties to the offence under Sections 7 and 8 of the Criminal Code of Lagos State.
RESOLUTION OF THE ISSUE
By way of preliminary remarks, I note that in considering a no-case submission, the Court’s duty is finite: it is only to determine whether the prosecution has made out a prima facie case, that is, whether there is admissible evidence linking the defendant with the offence with which he is charged. Hence, it neither involves the evaluation of evidence nor the consideration of the credibility of the witnesses.
In its Ruling, the trial Court must, with considerable circumspection, endeavour to avoid the temptation of delving into the exercise of evaluation of evidence or the consideration of the credibility of witnesses, State v Emedo [2001] 12 NWLR (pt 726) 131; Ekpo v State (2001) 7 NWLR (pt 712) 292; Odido v State (1995) 8 NWLR (pt 369) 88; Daboh v State [1977] 5 SC 197, This must be so for prima facie case is not the same with proof of a crime which is determined after the close of trial, Abacha v State [2001] 3 NWLR (pt 699) 35.
As such, it would be overreaching itself if it embarks on the evaluation of evidence or dissipates valuable judicial energy in the assessment of the credibility of the witnesses, Daboh v State [1977] 5 SC 197; Abacha v State [2001] 3 NWLR (pt 699) 35; Ohwovoriole v FRN [2003] 2 NWLR (pt 803) 176; [2003] 1 Sc (pt 1) 1; (2003) LPELR-SC392/2001; 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 3257 SC.105/2000; Abacha v State [2001] 3 NWLR (pt 699) 35 etc.
A survey of all binding authorities would reveal that where a no-case submission is made, the Court is not expected to volunteer any opinion on the evidence, Daboh v State [1977] 5 SC 197; Abacha v State [2001] 3 NWLR (pt 699) 35; 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 etc.
The rationale for this inviolable prescription is that, in such a situation, the duty of the trial Court is limited to a finding whether, prima facie, on the evidence adduced, the appellant had been linked with the alleged offence. Thus, in considering the defendant’s submission that he had no case to answer, the Court had no obligation to determine the question whether the evidence could sustain the conviction, R v Ogucha (1959) 4 FSC 64; Ekpo v State [2001] 7 NWLR (Pt 712) 292; Odido v State [1995] 8 NWLR (pt 369) 88; Abacha v State [2001] 3 NWLR (Pt 699) 35; Ubanatu v COP [1997] 7 NWLR (pt 616) 512.
Learned counsel for the appellant would appear to rate two dissimilar concepts in our accusatorial jurisprudence, namely, prima facie case and proof beyond reasonable doubt, equiponderantly! With profound respect, this sort of fallacious obfuscation of settled concepts must be dissipated without much ado. 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.

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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 [2009] 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.
As indicated earlier, the appellant was so anxious to filibuster the proceedings before the trial Court that, even before the Prosecution opened its case, his counsel had taken up the question of the non-disclosure of a prima facie case. With respect, the appellant should exercise patience until the Prosecution has opened and closed its case. The reason is simple. Section 260 (2) of the ACJL of Lagos State has altered the position under the old Law when Ikomi v State (supra) and Abacha v State (supra) were decided.
The section provides that “[a]n objection to the sufficiency of evidence disclosed in the proof of evidence attached to the Information shall not be raised before the close of prosecution’s case.” In effect, the appellant’s No case submission was hastily done.
Both the trial Court and the lower Court wasted precious time considering the question whether the evidence could sustain the conviction. That was sheer waste of time, R v Ogucha (supra); Ekpo v State(supra); Odido v State(supra); Abacha v State (supra); Ubanatu v COP (supra).
I find no merit in this issue. I hereby enter an order dismissing this appeal. The appellant shall return forthwith to the trial Court for the continuation of his trial thereat. Appeal dismissed.
MUSA DATTIJO MUHAMMAD, J.S.C.: Having read in draft the just delivered lead judgment of my learned brother CHIMA CENTUS NWEZE JSC and being in complete agreement with the reasoning and conclusion therein, I adopt same to dismiss the unmeritorious appeal. I abide by the consequential orders made in the lead judgment as well.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have read in draft the judgment of my learned brother, CHIMA CENTUS NWEZE, JSC just delivered. I agree entirely with the reasoning and conclusion that the appeal is devoid of merit.
The issue as to whether the Federal High Court has exclusive jurisdiction to try criminal matters arising from or connected with the matters set out in Section 251(1) of the 1999 Constitution or by virtue of Sub-section (3) thereof vis a vis the High Court of a State has been pronounced upon in numerous decisions of this Court. The issue was dealt with extensively in F.R.N vs. Okey Nwosu (2016) 17 NWLR (Pt. 1541) 226 where it was held that Section 251(1) (a) – (s) and Sub-section (3) thereof does not confer exclusive jurisdiction on the Federal High Court in criminal causes and matters arising from the items listed in Sub-section (1) and that the phrase “to the exclusion of any other Court” employed in Section 251(1) is deliberately omitted from Section 251(3), which simply provides that “the Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is conferred by Sub-section (1) of this section.”
It is hoped that legal practitioners would acquaint themselves with the extant position of the law on this issue so that valuable judicial time and energy is not wasted on beating a dead horse. This issue is no longer a crutch on which to lean in an attempt to derail the proceedings before the trial Court.
With regard to the second issue for determination, I agree with my learned brother that the appellant has been rather hasty and has put the cart before the horse. The issue as to whether the Information filed discloses a prima facie case against the defendant has been another means by which proceedings before the trial Court have been delayed. Section 260(2) of the Administration of Criminal Justice Law (ACJL) of Lagos State has effectively nipped this practice in the bud by providing that the sufficiency of the evidence in the proof of evidence attached to the Information shall not be raised before the close of the prosecution’s case. The issue having been raised even before the prosecution had opened its case was clearly premature. I agree with my learned brother that Section 260(2) of the ACJL of Lagos State has altered the position in Ikomi Vs The State (1986) 3 NWLR (Pt.28) 340 and Abacha Vs The State (2001) 3 NWLR (Pt.699) 35.

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I agree with him that there is no merit in this appeal. I hereby dismiss it and order the appellant to return to the trial Court for the continuation of his trial.
JOHN INYANG OKORO, J.S.C.: I was obliged in draft a copy of the judgment of my learned brother, Chima Centus Nweze, JSC just delivered. His Lordship has meticulously and quite efficiently resolved all the salient issues submitted for the determination of this appeal. I have nothing useful to add. I rather adopt both his reasoning and conclusion as mine. Issue of jurisdiction has been a recurring decimal in our Courts and inspite of a plethora of literature and judicial authorities on the matter, it is observed more in the breach.
Be that as it may, I agree that this appeal is devoid of merit and is hereby dismissed. I abide by all consequential orders made in the lead judgment. Appeal Dismissed.
EJEMBI EKO, J.S.C.: I read in draft the judgment just delivered by my learned brother, C. C. NWEZE, JSC. It represents my views in this appeal, and I hereby adopt it, including all the consequential orders made therein.
When the Legal practitioners repeat and submit the same issue on which this Court had previously authoritatively pronounced and declared the law on one begins to wonder whether the law reports serve any useful purpose anymore.
But how long can the Courts tolerate this attitude, reminiscent of the French Bourbons, who learnt nothing and who forgot everything?
The issue of jurisdiction vociferously canvassed in this appeal is the same issue canvassed and decided upon in F. R. N. v. OKEWU (2016) 17 NWLR (pt. 1541) 226 and many other decisions of this Court following the decision of the Full Panel of this Court in A. G, ONDO STATE v. A.G, FEDERATION & ORS (2002) 9 NWLR (Pt.772) 222 (SC). Only recently, in ONTARIO OIL & GAS NIG. LTD v. F. R. N No. SC. 518/2015 of 26th January, 2018 this Court, on the principle of stare decis reaffirmed the ratio decedendi; in A. G. ONDO STATE v. A. G. FEDERATION (supra) as regards this same point being canvassed in this appeal under issue 1. The issue has since been settled. Thus, an attempt to re-open it ostensibly for another panel to render a contrary view is an irritating abuse of process. I think, and I so hold firmly, that this appeal, particularly on issue 1 canvassed herein, is frivolous and a gross abuse of court’s process.
An appeal is said to be frivolous when there is no legal basis for bringing it; and it is only brought, as this interlocutory appeal has been, to delay the proceedings at the trial Court. According to Black’s Law Dictionary 9th ed., an appeal, filed purposely to avoid payment of the judgment debt or to frustrate the judgment creditor and induce him to settle, is a frivolous appeal. This instant interlocutory appeal has all the characteristics of a frivolous appeal, having been brought, for the purpose only, to frustrate and delay the trial of the criminal case pending against the Appellant at the trial Court.
In view of the numerous decisions previously rendered, which authoritatively declared the stance of this Court on the issue being canvassed in this appeal as issue 1, I should now think that there is no law supporting the point being now canvassed in this appeal under Issue 1 by the Appellant. The appeal on the said issue is clearly premised on frivolity and recklessness; and that is what makes the appeal on that issue vexatious and an abuse of the Court’s process. I am reinforced on this point by the decision of this Court in R – BENKAY NIG. LTD v. CADBURY NIG. LTD (2012) LPELR 7820 (SC). The employment of judicial process by a party, not only to irritate and annoy his opponent, but also the efficient and effective administration of justice is an abuse of the process of the Court: SARAKI v. KOTOYE (1992) 9 NWLR (pt. 264) 156 at 188.
I think it is time the Bar addressed this intrapersonal crisis in order to arrest the altruistic conduct of its members resorting to what my learned brother calls “these kinds of professional shenanigans only designed to delay proceedings at the trial Court”.
I find no substance in this appeal which I regard as frivolous and vexatious. It is accordingly dismissed.