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Lower courts bound by decisions of higher courts (1)



Samuel Chukwudumebi Oseji – JUSTICE, COURT OF APPEAL
Abimbola OsarugueObasek Adejujo- JUSTICE, COURT OF APPEAL

APPEAL NO: CA/LD/497/2014





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.

The Appellant and Dr. Erastrus Akingbola,former Managing Director of intercontinental Bank Plc., were arraigned at the Lagos State High Court under a joint information dated 4/5/11. The information has 29 counts 17, 27, 28 and 29 affecting the appellant. All four counts allege advanced fee fraud against Mrs. Anthonia Akingbola (now at large), and the Appellant, who was General Manager of Tropics Securities Ltd. The counts allege that with intent to defraud, he obtained various sums of money from the said Bank, by falsely pretending that it was indebted to Tropics Securities Ltd., for purchase of shares on behalf of the Bank. They challenged the jurisdiction of the court on the following grounds­— i. The counts against him – are in respect of monies allegedly obtained by false pretences from intercontinental Bank Plc. For the purchase of share quoted/traded on the floor of the Nigeria Stock Exchange. ii. The counts relate to Capital Market Transactions, which are under the Exclusive Legislative List (Part 1 of the second schedule to the 1999 Constitution as Amended). iii. The National Assembly has the exclusive powers to legislate on the matter relating to Capital Market Transaction. By virtue of section 25(1)(s) of the 1999 Constitution and Section 7(3) of the Federal High Court Acts, CAP F12b LFN 2004, the Federal High Court has the exclusive jurisdiction over counts 15,27,28 and 29 of this information. iv. The application is supported by a 7- paragraph affidavit. In opposing it, the Respondent filed a 5- paragraph Counter- Affidavit to the effect, and the Appellant responded with a reply on point’s law. The application argued on 21/11/2014 and the learned trial judge, Lawal – Akapo, J., delivered his ruling on 23/5/2014, wherein he dismissed the application. In assuming jurisdiction to certain the information, he held as follows: ‘’The 2nd Defendant is seeking to quash counts 15, 27 – 29 in the information dated 4/5/11 preferred against him. The charge – are very clear. The offences alleged in the counts are obtaining money under false pretences the purposes for which money is meant were not stated but the alleged falsity, which connect defunct intercontinental Bank Plc., were stated.

I find and I hold that the counts have no basis whatsoever in Capital Market transactions… A reading of the counts reveal obtaining money under false pretences and the particulars of the falsity were stated on the counts. This does not give the counts the coloration or semblance of Capital Market transaction.

Dissatisfied with the decision of the lower court, the Appellant filed a Notice of Appeal containing 7 Grounds of Appeal in the court, and he distilled 5 Issues for Determination there- from in his Brief of Argument prepared by Prof. Taiwo Osipitan, SAN, Mrs. Olayemi Badewole and Miss Oluwatosin Adams. His issues for Determination are as follows:- 1. Whether the Learned Trial Judge was right or wrong in his decision that Counts 15,27,28 and 29 disclose offences of Advance Fee Fraud simpliciter notwithstanding the fact that the information and Proof of Evidence show that the offences in the counts relate to purchase or no-purchase of Shares of a public quoted company on the floor of the Nigerian Stock Exchange by a Stock Broking Company.

2. Whether the Learned Trial Judge was right or wrongly refused to follow the recent decision of the court of Appeal in Okey Nwosu v. FRN & Ors. Which is to the effect that criminal matters within the exclusive legislative list of the National Assembly are within the exclusive criminal jurisdiction of the Federal High Court? 3. Should the Learned Trial Judge ignore or be guided by the Proof of Evidence in deciding the issue of jurisdiction to entertain Counts 15, 27, 28 & 29 of the information? 4. Whether the Learned Trial Judge rightly or wrongly relied on the decision in NDIC v Okem Ent. Ltd. (2004) 10 NWLR (Pt. 880) P.107 at 185-186 in arriving at the conclusion that the Federal and State High Courts have concurrent criminal Jurisdiction over criminal causes and matters on the exclusive legislative list of the 1999 constitution as amend. 5. Whether having regard to the Capital Market transaction nature of Counts 15, 27, 28 & 29 of the information, the State High Courts rightly relied on Section 14 of Advance Fee Fraud Act to assume jurisdiction over the said Counts.

The Respondent, however, believes that a sole Issue for Determination would suffice, and formulated the following issue in its brief settled by Emmanuel Ukala, SAN, Godwin Obla SAN, and Edwarde C. Okpe, Esq.- ‘’Whether the trial Court was right when it held thatit had the jurisdiction to determine the counts contained in the information against the Appellant before it.’’

In my view, the issue formulated by the Respondent encapsulates all the complaints in the Appellant’s Ground of Appeal, and I will adopt same in dealing with this appeal. The Appellant, however, started the ball rolling with arguments on Issue 3, which centers on the lower Court’s refusal to look at the Proof of Evidence in determining the question of jurisdiction.

The Appellant argued that both Prosecution and Defence were ad idem on the need for the lower court to look into the Proof Of Evidence to decide the said issue but it adopted a different approach when it held – “Counsel at page 30 -34 made an analysis and evaluation of some of documentary evidence proposed to be tendered by the prosecution. I find and I hold that this exercise is premature and cannot be looked into at this stage of the proceedings. It is the law that matters for substantive hearing cannot be delved into the interlocutory stage. See Ugbede Ali V. the State (2012) 10 NWLR (Pt. 1309) 589. Agube, JCA at page 624 held… He contends that it wrongly relied on the obiter dictum of Agube JCA in Ugbede Ali’s case in arriving at its conclusion that the Proof of Evidence was irrelevant in the determination of the issue of jurisdiction because – Unlike this appeal where the issue of jurisdiction is at the center stage, the bone of contention in Ugbede Alis Case was the issue of pre – trial bail.

“I will therefore examiner the issue of jurisdiction not only on the arrow compass of what evidence was available but also on the charges as laid.’’ In Okey Nwosu V. FRN, this court in its lead judgment held thus – “The Court in determining whether it possesses the jurisdiction over an action initiated beside it, has the bounden duty to peruse at the report of the investigators assigned to investigate the petition and what they discovered which formed the basis of the charge preference to Proof of Evidence in the resolution of interlocutory Application to quash a charge. The Respondent argued that the lower Court’s find is correct and cannot be faulted; that it is preposterous for the Appellant to submit that it ought to have perused the proof of evidence; that Abacha’s Case is inapplicable as it relates to an application to quash a charge; and that other cases he cited are also not applicable because they are civil cases. The Appellant replied that the tide of judicial authorities show that proof of evidence is relevant in determining a court’s jurisdiction; that the issue is not about evaluating evidence but whether it is entitled to ignore the proof of evidence, which it is enjoined to look at (not evaluate); that Abacha’s case dealt with jurisdiction to entertain an information and supports the principle that a court is entitled to look at proof of evidence.

“In other words, there can be no squabbles about the lower Court’s Ruling in relation to any evidence seeing as no evidence had been led before it. The said matter had not reached trial stage, where evidence is proffered, before he filed the Application dated 18/5/2014, praying the lower court – for an order quashing and/or striking out counts 15, 27, 28 and 29 contained in the information dated 4/5/2011 preferred against (him),’’ and the direction of this appeal must be focused on his prayer; nothing more.

“As it is, the lower court did not go through the Proof of Evidence before it conclusion that it had jurisdiction to try the Appellant for stealing. The Respondent stated at page 4 of its brief that is position on this issue ‘’is that the trial court in determining jurisdiction to entertain the counts against the Appellant should only look at the counts in the information and not the Proof of Evidence.’’ The Appellant contends that ‘’in the decision to quash or not an information, the Proof of Evidence must be examined by the Court.’’ The Appellant relied on the decision of the Supreme Court in Abacha V. State (supra) to buttress his position, but the Respondent cannot has urged us to distinguish that case from this one. Certainly, the Respondent cannot hold up itself under the weight of judicial authorities that support the Appellant’s position on the subject. Abacha’s case also dealt with an Application to quash the information against him and the Supreme Court is, indeed, very apt. In Abacha’s Case, he filed an Application to quash the information filed against him on the ground inter alia that from the Proof of evidence, a prima facie case had not been made out against him. The trial Court and this court refused the said application, however, the out Supreme Court in a 4-1 decision granted the Application and quashed the information. Three of our former Chief Justices of Nigeria participated in Appeal. Belgore, JSC (as he then was) stated as follows in the lead judgment.

“It is not the law, neither is it the justice, to say once the application is made on information, and all necessary documents are attached, without more, the application to prefer charge must be granted – There must be facts in the proofs of evidence to justify the grant of Application. Otherwise, indictments will always be allowed to be tried where enough particulars are absent in the proofs of evidence. I must not be understood to hold that quilt of accused must be established before approving the information to file the trial.’’

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