Does FCT High Court have jurisdiction over Malabu charges?
At the last count, the Economic and Financial Crimes Commission (EFCC) had filed at least two sets of criminal charges in connection with the allegedly corrupt disposal by the Federal Government and/or Malabu Oil and Gas Co. Ltd. of Oil Prospecting License (OPL) 245 to Shell Nigeria Exploration and Production Co. Ltd. (SNEPCO) and Messrs. ENI/AGIP for the sum of N1.1 billion.
The first set, filed on the 20th day of December, 2016 charged the defendants with fraud-related money-laundering under the Money Laundering (Prohibition) Act 2011 as amended in 2012. The second set of charges filed on the 20th day of February 2017, alleged conspiracy and official corruption against the defendants contrary to the Corrupt Practices and other Related Offences Act 2000. Whilst the first sets were filed at the Federal High Court, the second set, with Charge No. CR/124/17, were filed before the High Court of the Federal Capital Territory, Abuja.
I believe that the venue of the latter set of charges is problematic under relevant provisions of the 1999 Constitution. In my view, the Federal High Court – and not the High Court of the FCT – is the proper forum to pursue the second set of charges. Before dissecting them, however, a brief overview of the concept of jurisdiction is apposite. Jurisdiction is defined as: “The power of the court to adjudicate on the subject matter of a case and it is either given by the Constitution or a specific statute on the subject in issue.” per Belgore, JSC, in NWOSU vs. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR pt. 135 pg.688 @ 726. In STATE vs OKOYE (2007) 16 NWLR pt. 1061 pg. 607 @ 663, the Court of Appeal, per Adekeye, JCA (as he then was) held that: “Jurisdiction is the cornerstone of all litigations . . . It is a threshold issue and the lifeline of all trials. A trial without jurisdiction is a nullity”. We shall now analyze the charges.
Charge No. CR/124/17
Eleven defendants are indicted in this information, as follows: SNEPCO, Agip, Eni, Ralph Wetzels, Casula Roberto, Pujatti Steffano, Burrafato Sebastiano, Douzia Louya (aka Dan Etete), Mohammed Bello Adoke, Aliyu Abubakar and Malabu Oil and Gas Limited. The Federal Republic of Nigeria is the purported complainant. For a proper grasp of the issues herein, it is absolutely indispensable to set out the three-odd charges in full, as follows: “ Count One
Statement of Offence
Conspiracy contrary to Section 26 of the Corrupt Practices and Other Related Offences Act 2000 and punishable under Section 12 of the same Act.
Particulars of the Offence That you, Shell Nigeria Exploration and Production Co. Ltd., Nigeria Agip Exploration Ltd., Mohammed Bello Adoke, Douzia Louya Etete (aka Dan Etete), etc, sometime in 2011 in Abuja, within the jurisdiction of this Honourable Court, conspired amongst yourselves to commit a felony, to wit, official corruption and thereby committed an offence”
Statement of Offence
Official Corruption, contrary to Section 9 of the Corrupt Practices and other Related Offences Act, 2000 and punishable under Section 9(b) of the same Act.
Particulars of the Offence
That you, Douzia Louya Etete (aka dan Etete), Mohammed Bello Adoke, Aliyu Abubakar and Malabu Oil and Gas Ltd., sometime in 2011, within the jurisdiction of this Honourable Court, corruptly received the aggregate sum of $801,000,000 in relation to the grant of Oil Prospecting Licence in respect of OPL 245 from Shell Nigeria Exploration and Production Co., Nigeria Agip Exploration Ltd and ENI, Spa and thereby committed an offence”
Statement of Offence
Official corruption contrary to Section 9 of the Corrupt Practices and other Related Offences Act 2000 and punishable under Section 9(b) of the same Act.
Particulars of Offence That you, Shell Exploration and Production Nig. Ltd., Ralph Wetzels (whilst being a Director of SNEPCO), etc, sometime in 2011, within the jurisdiction of this Honourable Court, corruptly gave the aggregate sum of $801,000,000 Douzia Louya Etete (aka dan Etete), Mohammed Bello Adoke, Aliyu Abubakar and Malabu Oil and Gas Ltd on account of the grant of Oil Prospecting Licence in respect of OPL 245 and thereby committed an offence”
It is trite law that the claim of the plaintiff or complainant determines the jurisdiction of the court and not the defence of the defendant: ADEYEMI vs OPEYORI (1976) 9-10 S.C. 31. I submit that it is crystal-clear from the three charges filed against the defendants above that they arose from the allegedly corrupt disposal and retention of the proceeds of Oil Prospecting Licence (OPL) 245 by the defendants.
By virtue of Section 251(1)(n) & (3) of the 1999 Constitution, only the Federal High Court is competent to try criminal causes and matters arising from oil fields, oil mining, geological survey and natural gas. They provide as follows, respectively:
“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred on it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters (arising from) mines and minerals (including oilfields, oil mining, geological surveys and natural gas)”
“The Federal High Court shall also have and exercise jurisdiction and powers in criminal causes and matters in respect of which jurisdiction is conferred by subsection (1) of this Section”
There is no question that the entire circumstances of the Malabu saga arose from the grant and disposal by the parties to the charges of Oil Prospecting Licence 245. This fact is borne out by the complainant itself in page 18 of the Proofs of Evidence filed along with the charge, where the following passage occurs:
“OPL 245 is a 1,958 square kilometer oilfield located in the Eastern Niger Delta in offshore waters of Nigeria”
Accordingly, the only issue is which court, as between the Federal High Court and the High Court of the FCT, is competent to try the allegedly corrupt disposal by the Defendants of the said oilfield. The jurisdiction of the High Court of the Federal Capital Territory is defined in Section 257(1) of the 1999 Constitution, thus: “Subject to the provisions of Section 251(1) 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”
It is self-evident that the jurisdiction of the Federal High Court and that of the High Court of the FCT are mutually-exclusive. This is the effect of the phrase “subject to” used in Section 257(1) in relation to Section 251 of the Constitution; it subordinates the provisions of Section 257 to those of Section 251, which defines the jurisdiction of the Federal High Court.
No court is hungry for jurisdiction. A dispassionate analysis of the provisions of Sections 251 and 257 of the Constitution vis-à-vis the charges and the proofs of evidence attached thereto in Charge No. CR/124/17 will lead to the irresistible conclusion that, to the extent that the subject matter of the charge is an oilfield, Section 251(1)(n) & (3) of the Constitution is applicable and confers exclusive jurisdiction on the Federal High Court to try the offences alleged against the Defendants.
Accordingly, the only option open to the trial High Court of the FCT, in my respectful view, is to decline jurisdiction and strike out the charges. I submit that transferring them to the Federal High Court is out of the question as, to the best of my knowledge, there is no provision in the High Court of the FCT Act comparable to Section 22(2) of the Federal High Act, which empowers the court to transfer cases wrongly filed in the Federal High Court to High Courts of the States and the FCT.
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