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Lower courts bound by decisions of higher courts (2)

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IN THE COURT OF APPEAL LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS ON WEDNESDAY, THE 31ST DAY OF DECEMBER, 2014 BEFORE THEIR LORDSHIPS

Amina Adamu Augie – JUSTICE, COURT OF APPEAL Samuel Chukwudumebi Oseji – JUSTICE, COURT OF APPEAL Abimbola OsarugueObasek Adejujo – JUSTICE, COURT OF APPEAL

APPEAL NO: CA/LD/497/2014 BETWEEN BAYO DADA ——————————-—————————— APPELLANT AND: FEDERAL REPUBLIC OF NIGERIA ………………RESPONDENT

The principles of stare decisis, I think has imposed an obligation on lower courts to be bound by the decisions of higher courts. Deliberate refusal to so be bound amounts to judicial impertinence, which is capable of enthroning judicial rascality and anarchy in the judicial hierarchy. So held the Court of Appeal, holden at Lagos, in a unanimous leading judgment by His Lordship, Amina Adamu Augie JCA with his learned brothers, Samuel Chukwudumebi Oseji and Abimbola OsarugueObasek Adejujo JJCA, concurring while allowing the appellant’s appeal.

THE parties were represented by. Prof. Taiwo Osipitan, SAN, Mrs. Olayemi Badewole and Miss Oluwatosin Adams for the Appellants while Emmanuel Ukala, SAN, Godwin Obla SAN, and Edwarde C. Okpe, Esq. for the respondents. The facts are as contained in the body of the judgment.

Furthermore, that contrary to the decision of the lower courts, particulars of offences and statements of prosecution and defence witnesses, point to the direction of dealings in Securities/Capital market transactions.

He submitted that the distinction made by the lower court between this appeal and Okey Nwosu’s Case is one without a difference since both cases deal with Capital Market transactions, therefore, it should have refused to follow Okey Nwosu’s case; that by virtue of the principle of stated decisis, the lower court is bound by the decision of this court in Okey Nwosu’s case; that the lower court was duty bound to look at the nature of the transactions that gave rise to the said offence, and ought not to have treated the counts as dealing with simple case of obtaining by false practice, more so, when its particulars specifically disclosed that the alleged sum was for purchase of Shares of the bank; and that the resolution of the counts will definitely involve Capital Market issues on the procedure for receiving instructions, implementing instructions on the purchase of share in Capital Market, and also whether Shares were in fact purchased or not and what quantity of shares were purchased.

He brought in the doctrine of stare decisis as propounded in Dingyadi & Anor. V. INEC & Ors (2011) LPELR – 950 (SC), Atolagbe V. Awuni (1997) 9 NWLR (Pt 522) 536 & Nweke V. Nwuzi (2011) LPELR – 4641 (CA), and argued that the lower court’’ was wrong to have overruled (the) decision in Okey Nwosu’s case, when it held in relation to Section 251(1) and Item 12 of the Exclusive Legislative list of the 1999 Constitution that – ‘’Clearly the word ‘’ exclusive’’ was removed from the above provision. The implication of that in my view is that the criminal and civil jurisdiction conferred by that Section is not limited or restricted to the Federal High Court.’

He proffered arguments under Issue 4 & 5 touching on the issue of the jurisdiction of the Federal High Court vis-à-vis Section 251(1) of the 1999 Constitution, and other related issues. But these issues were dealt with in Nwosu’s case by this division, where I am the Presiding Justice, and I refuse to say anything that may be construed as an affirmation or a disagreement with any decision touching on issues covered in the case. As far as this appeal is concerned, the issue that calls for determination is simply whether the decision in Nwosu’s Case applies in this case.

He referred to Section 25 of the Interpretation Act, and further stated – The law has made the prosecution of the offences alleged against the Appellant exclusive to the Federal High Court. Any other charge or charges in any other guise relating to the same issue before any court is void ab initio, and of no effect whatsoever for lack of jurisdiction. The act of the Respondents is like putting something on nothing. No doubt it will not stay, it will collapse. See the famous diction of Lord Dennin MR, in the case of UAC V. Macloy (1961) 3 ALL ER 169 at 172….. The Charges placed at the High Court Lagos State by the Respondent against the Appellant is incurably bad for lack of jurisdiction.

The Appellant has lampooned and attacked the trial Court for not following the decisions in Nwosu’s case and FRN v. Eze… it is legally inconceivable and untenable for the trial court to follow the decision of the Court of Appeal in FRN V. Eze when it was obvious that the said decision in FRN v. Eze (supra), which said decision has being set aside by the Supreme Court in the case of Eze V.FRN (supra), the trial Court was right not to have followed the decision of this court in the case of Okey Nwosu (supra).

It further submitted as follows at page 8 of the Respondent’s Brief – since the decision of the Supreme Court in Eze V. FRN overruled the Court of Appeal decision in FRN V. Eze, the trial court had no option but was under an obligation by doctrine of stare decisis to follow and kowtow to the Supreme Court decision in Eze V. FRN. The Court ought to be commended and not be crucified for relying on the Supreme Court decision in Eze V. FRN (supra).

I must ask – what is the Respondent saying? That the lower court should be commended and not crucified for refusing to follow the decision of this court in Okey Nwosu’s case? This is a slap on the face of stare decisis, which is what make the law certain and prevents it from being an ass – see Okonjo & Odge Ors (1985) 10 SC 267, where Eso, JSC, stated – In the hierarchy of the Courts in this country, as in all other common law countries, one thing is clear, however, unlearned a lower Court considers itself to be and however contemptuous of the higher court, the lower Court is still whereby the Court of Appeal in this country or any lower court for that matter, would deliberately go against the decision of this court, and in this case, even to the extent of not considering the decisions when those of this court were brought to the notice of that court. This is the discipline of the law that is what makes the law certain and prevents it from being an ass.

How can a High Court refuse to abide by the decision of this Court on the ground that its decision is based on a decision that has been overruled? Surely, the Respondent’s stance is nothing but a call to judicial anarchy – see LMB Ltd V. PTF (2006) 5 NWLR (Pt. 974) 463, wherein it was held – The principle of stare decisis, I think has imposed an obligation on lower Courts bound by the decisions of higher courts. Deliberate refusal to so be bound amounts to judicial impertinence, which is capable of enthroning judicial rascality and anarchy in the judicial hierarchy.

This must be eschewed and discouraged by judges. The Respondent is practically asking the lower court can sit on appeal over our decision, which is an anathema to the doctrines of stare decisis. See Unilag V. Olaniyan (1985) 1 SC 295, where Eso, JSC, observed –

When a lower Court is faced with the construction of a rule in pari material with one that has been constructed by this Court, the lower Court has no option but to follow the principle laid down by this Court in its construction of that rule. What will be left for the lower court to apply the laws laid down by this court to the peculiar facts of the case before it. The lower court has no business with whether or not the decision of this court therein is right or wrong. In the hierarch of courts, one principle has been established beyond par, and that is, that lower court is bound by decision of the higher court.

As I said, the Appellant was arraigned with Dr. Erastus Akingola. They both appealed against this same Ruling. The Appellant filed this separate Appeal but he is also the 2nd Respondent in Dr. Akingbola’s Appeal No. CA/490/2014. He did not participate in the said Appeal, however, we delivered judgment earlier today, and I cannot think of any better way to resolve this appeal than to view it in the light of that Appeal. I wrote the lead judgment in Akingbola’s case, and this what I said –

The lower court refused to abide by our decision in Nwosu’s case on the ground that this court held therein that since the alleged offences have their tools in capital market. The lower Court did not look beyond the Courts against the Appellant, and as far as it was concerned, it had jurisdiction to try him for stealing, which is all that mattered forgetting that the allegations must be proved. This Court asked a key question in Okey Nwosu’s Case, as follows:

Will there be any evidence at High Court of Lagos State, which is different from the evidence that will be before the Federal High Court on the existence of the thing stolen.

In other words,. The question the lower court should have asked itself is, will be Persecution adduce any evidence that would be different from evidence before the Federal High Court as regards the money stolen? However, the lower Court did not look at the Proof of Evidence before it. If it had read it, it would have answered the question in the negative – No. the very fabric of the offence charged in this case – stealing is woven around banking transactions which are linked to banking rules allegedly violated by the Appellant in the process of stealing the Bank’s money….. In Nwosu’s case, this Court went below the surface of the said counts, and excavated the roots on which the allegation of stealing sprang from only to find that there was nothing connection it to the State High Court. We have a similar situation, the case before the lower Court is riddled with matters for which the Federal High Court has exclusive jurisdiction, and there is no way a charge of stealing can stand without evidence that can only be looked into and determined solely by the Federal High Court. The long and short of it is that lower court fell into serious error, when it failed to abide by the decision of this Court in Okey Nwosu’s case and this issue must be resolved in favour of the Appellant.

Obviously, we do not have to dig up roots scratch under any surface; we can see that the counts as couched are capital market transactions. The lower Court categorically stated as follows in its Ruling in this case.

The offences alleged in Okey Nwosu’s case have to do with conversion and purchase of shares and stocks. The offences had their roots in capital market. The Court of Appeal held that since the alleged offences have their root in capital market, the matter is therefore within the purview of the Federal High Court. In the present case, the offences alleged are stealing, receiving and obtaining money under false pretences. This is within the confines of the State High Court and I so hold.

If we use the lower Court’s assessment of the decision in Nwosu’s case as the yardstick, then the Appellant’s case falls squarely under its ambit. All the 4 Courts mention the purchase of shares on behalf of the Ban. There is the statement of an investigator (supra) that he applied to CSCS for details of Shares traded by Tropic Securities Ltd during that period. In his statement, the Appellant, who was the GM, said that he was not sure if the Rules allowed the Banks buy its own shares with its money. These are pointers that this case is outside the lower Court’s league and it had no business assuming Jurisdiction to entertain the said information. As the Appellant rightly submitted, the purchase or non purchase of the shares is an integral part of the courts against him, and the falsity or otherwise of the alleged pretences, will depend on whether the shares were purchased or not by the said company on behalf of the said Bank. These are issue that can only be verified by Federal High Court and being capital market transactions are within its exclusive jurisdiction.

In the circumstances, this appeal succeeds and is hereby allowed. The decision of the lower Court in its Ruling dated 2/5/2014 is set aside, and in its place, I thereby strike out the information dated 4/5/11 preferred against the Appellant at the lower Court in Charge No. ID/148C/2011.



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