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State high courts have jurisdiction over offence of corrupt practice under ICPC Act

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Amshi v. FRN (2019) LPELR-48392 (CA)

In the Court of Appeal
In the Jos Judicial Division
Holden at Jos
ON TUESDAY, 20TH AUGUST, 2019
Suit No: CA/J/7C/2019

Before Their Lordships:

UCHECHUKWU ONYEMENAM, JCA
MUDASHIRU NASIRU ONIYANGI, JCA
BOLOUKUROMO MOSES UGO, JCA

Between

MUSA BUBA AMSHI
-Appellant(s)

And

The FEDERAL REPUBLIC OF NIGERIA
-Respondent(s)
LEAD JUDGMENT DELIVERED BY UCHECHUKWU ONYEMENAM, J.C.A.

FACTS OF THE CASE
The Appellant who was then a public servant and staff of Independent National Electoral Commission (INEC); committed a crime to wit: receiving a bribe from one Jummai Lawan Ibrahim in the course of performance of his official duties as a public officer. The Appellant alongside two other persons were arraigned before the Borno State High Court in Charge No: BOHC/MG/CR/51/2018 by the Economic and Financial Crimes Commission (EFCC) for offences of criminal conspiracy to corrupt public officers; corrupt procurement of monetary benefit; receipt of monetary benefit; and corrupt conferment of monetary benefit on another under the Corrupt Practice and Other Related Offences Act 2000.

After taking his plea of not guilty, the prosecution called five witnesses to prove its case. And upon the close of the prosecution’s case, the Appellant who was the 3rd accused person at trial together with his other co-accused persons raised an objection to the jurisdiction of the trial court to continue with the trial. The Appellant’s contention was that from the evidence led, the trial court lacks jurisdiction to hear and determine the case as a mandatory condition precedent for the initiation of the case had not been fulfilled. The learned trial Judge overruled the objection and held that the Court had jurisdiction to hear and determine the case. Dissatisfied with the ruling, the Appellant sought and obtained the leave of the trial Court to appeal to the Court of Appeal.

ISSUES FOR DETERMINATION
The Court determined the appeal on the sole issue as follows: Whether in view of the provision of Section 150 of the Electoral Act, 2010 (as amended); Section 285(1) of the Constitution of the Federal Republic of Nigeria 1999 (as altered) and decision in F.R.N V. SOLOMON (2018) 7 NWLR (PT. 1618) P. 201; (2017) LPELR-43744 (SC), the trial Court has jurisdiction to try this case bearing in mind that the alleged offences are directly connected to the 2015 General Election.

SUBMISSION OF THE APPELLANTS’ COUNSEL
Appellant Counsel rehashed the charge against the Appellant at the trial Court and argued that the evidence at the trial Court revealed beyond peradventure that the offenses were allegedly committed during and in connection with the presidential election held across Nigeria, including Borno State on March 28, 2015. He attempted the definition of influence, to submit that by the provisions of SECTIONS 138 (1) (B); 149 AND 150 (1) AND (2) OF THE ELECTORAL ACT, 2010; OLALOMI IND. LTD V. N.I.D.B. LTD. (2009) 16 NWLR (PT.1167) P. 266, (2009) LPELR-2564 (SC); FEDERAL REPUBLIC OF NIGERIA V. ENWENEDE SOLOMON & ORS. (2018) 7 NWLR (PT. 1618) 201, (2017) LPELR-43744 (SC); the trial Court or a Magistrate Court can only exercise special powers/exclusive jurisdiction under Section 150(1) of the Electoral Act, (supra) to try such offences, if and only if an Election Tribunal, pursuant to Section 149 thereof, in an election petition presented before it, makes a recommendation to INEC in that regard.

The learned counsel for the Appellant argued extensively and emphatically that where a pre-condition for initiating a legal process is laid down, any suit initiated in contravention of the pre-condition is incompetent and a Court of law lacks the jurisdiction to entertain the same. He cited: DREXEL ENERGY AND NATURAL RESOURCES LTD V. TRANS INTERNATIONAL BANK LTD. (2008) 18 NWLR (PT. 1119) 388, (2008) LPELR-962 (SC). He urged the Court to allow the appeal.

SUBMISSION OF THE RESPONDENTS’ COUNSEL
Learned counsel for the Respondent in adverse response referred to Section 138 (1) (b) of the Electoral Act, 2010 to submit that the offenses as charged did not arise from the Respondent’s questioning the 2015 presidential election. He emphatically stated that the offences as charged which are offences of receiving a bribe, and corruptly procuring monetary benefit in favour of public officers; squarely fall under the Corrupt Practices and Other Related Offences Act, 2000. He further submitted that the case of FRN V. SOLOMON & ORS. (2018) 7 NWLR (PT. 1618) 201, (2017) LPELR-43744 (SC); is not applicable as he differentiated the same from the instant appeal.

Also the Respondent’s counsel relied on Section 7 (2) (f) of the Economic and Financial Crimes Commission (Establishment) Act 2004 and Section 61 (3) of The Corrupt Practices and Other Related Offences Act, 2000; as to the powers of the Respondent to prosecute and the Court with jurisdiction to submit that the High Court of Borno State has jurisdiction to entertain the present matter. He urged the Court to dismiss the appeal and affirm the decision of the trial Court.

RESOLUTION OF ISSUE
In determining the issue, the Court stated the principle of law with regards to statutory conditions precedents to the institution of action and the jurisdiction of a Court as decided in the cases of GABRIEL MADUKOLU & ORS. V. JOHNSON NKEMDILIM (1962) 2 ALL NLR 587 AT 595, (1962) 2 S.C.N.L.R 341 AT 343, PARA C-D, (1962) LPELR-24023 (SC); A.G, FEDERATION V. ABACHA (2010) 17 NWLR (PT. 1221) PAGE 1 AT 28-29, (2010) LPELR-8997 (CA); SKEN CONSULT (NIG.) LTD & ANOR v. UKEY (1981) 1 S.C, (1981) LPELR-3072 (SC); MILITARY ADMINISTRAT0R OF BENUE STATE V. P.P. ULEGEDE (2001) 17 NWLR (PT.741) 194, (2001) LPELR-3184 (SC).

The Court further quoted the immaculate statements of the law as held by Karibi-Whyte, J.S.C in NWOKORO V. ONUMA (1990) NWLR (Pt. 136) 22 at 32, (1990) LPELR-2125(SC); wherein his Lordship held as follows: “It is a fundamental principle of legality that where an act or course of conduct fails to meet with the requirements prescribed by law, such that the non-compliance renders that act or course of conduct devoid of legal effect, no legal consequences flow from such acts or course of conduct.”

Again, Tobi, J.S.C in INAKOJU V. ADELEKE (2007) 4 NWLR (PT. 1025) P. 423; (2007) LPELR-1510 (SC), on the same note said:
“Where the constitution or a statute provides for the pre-condition for the doing of a thing or force the attainment of a particular situation, the pre-condition must be fulfilled or satisfied before the particular situation will be said to have been attained or reached. The common and popular pet expression for it is ‘condition precedent’… The Courts are bound to enforce the mandatory provisions of substantive law including the constitution. It is the duty of all Courts to give effect to legislation. Therefore, parties cannot by consent or acquiescence or failure to object, nullify the effect of a statute or Constitution. In other words, it is the duty of a Court to enforce a mandatory provision of an enactment”.

A year after, the Supreme Court, in DREXEL ENERGY AND NATURAL RESOURCES LTD. V. TRANS INTERNATIONAL BANK LTD. (2008) 18 NWLR (PT. 1119) 388 AT 431, PARAS. D-E, (2008) LPELR-962 (SC); categorically restated the law that where a pre-condition for initiating a legal process is laid down, any suit initiated in contravention of the pre-condition is incompetent and a Court of law lacks the jurisdiction to entertain the same.

The Court observed that the Appellant’s grouse in this appeal is that by the combined provisions of Sections 138(1)(b), 149, 150 (1) and (2) of the Electoral Act (supra); Section 285 (1) of the 1999 Constitution as amended; the trial Court not only lacks the requisite jurisdiction to entertain the instant charge, but also a recommendation by an Election Tribunal pursuant to Section 149 of the Electoral Act, 2019 (as amended) is a condition precedent to the invocation of the special powers/exclusive jurisdiction conferred on the Magistrate Court or the trial Court under the Electoral Act to try the alleged offences for which the Appellant stands trial.

The Court stated that the above contentions of the Appellant stem on the case of F.R.N. V. SOLOMON (2018) 7 NWLR (PT. 1618) 201, (2017) LPELR-43744 (SC) and the reasoning in HON. JUSTICE HYELADZIRA AJIYA NGANJIWA V. F.R.N (2017) LPELR-43391 (CA). The Court observed that the root provision of the Appellant’s grouse is Section 138 (1) of the Electoral Act, which provides for grounds under which an election may be questioned.

In addressing the issue, the Court held as follows: “By the said Section, where there is an election, a person entitled under Section 137 of the Electoral Act to question the said election can come under any of the grounds in Section 138 (1) of the Electoral Act, which grounds includes that the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Act. From the records and the charge in particular, although the offences as charged were committed during election, the offences did not arise from election petition. Section 138 (1) (b) of the Electoral Act in my view relates to offences disclosed in Election Petition and not just an offence committed coincidentally during election.

From the totality of the provisions of the law reproduced above, where an election is questioned under Section 138 (1) (b) of the Electoral Act, and in the cause of the hearing of the Petition an offence of corrupt practice is disclosed against any person, the Commission shall only consider the prosecution of the person against whom an offence is disclosed if the tribunal so recommends, and in which case the Commission’s legal officer or any legal practitioner appointed by the Commission shall prosecute the person whom electoral offence of corrupt practice has been disclosed against in a Magistrate Court or High Court of a State in which the offence is committed, or the Federal Capital Territory, Abuja. This is to say that any offence of corrupt practice in an election which does not arise from nor is disclosed in an election petition is not governed by the provisions of Sections 138 (1); 149; 150 of the Electoral Act; and of course, does not come under Section 285 (1) of the Constitution.

In the instant case therefore, whereas the offences the Appellant is charged border on corrupt practices in the 2015 Presidential Election, but so far the offences were not disclosed in an Election Petition, the prosecution of the Appellant of the offences as charged before the trial Court is not governed by the provisions of the Electoral Act reproduced above and accordingly the Prosecution herein did not need to fulfil the condition precedent of first getting a recommendation from the tribunal before prosecution, nor be legal practitioners appointed by INEC to prosecute or on the other hand be the INEC’s legal officers. The issue of the Prosecution not abiding by the conditions precedents to charging and prosecuting the Appellant of offences of corrupt practices under the Electoral Act does not therefore arise in which case the cases cited by the Appellant particularly the case of F.R.N. V. Solomon is not applicable to the instant case.

With the facts and circumstances of the case at hand, the provisions of the ICPC Act which empowers the Respondent to prosecute the Appellant for offences of corrupt practices and which confers jurisdiction on the trial Court do not run counter to the provision of the Constitution as rightly submitted by the learned Counsel for the Respondent.

Accordingly, I hold that the High Court of Borno State has the jurisdiction to hear and determine the charge against the Appellant the offences not being ones disclosed in election petition but offences rightly charged under the ICPC Act. I resolve the sole issue in favour of the respondent.

HELD

On the whole, the Court held that the appeal lacks merit and it was thereby dismissed.
Appearances:
Zanna Hamza, Esq.
-For Appellant
Khalid Sanusi, Esq.
-For Respondent
Compiled by LawPavilion


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