RE: EFCC v Yahaya Bello: Understanding Yahaya Bello’s Jurisdictional Objection

There has been a circus going on between former Governor of Kogi State – Alh. Yahya Bello and the Economic and Financial Crimes Commission (EFCC).The brilliance of former Governor Bello’s Lawyers However holds EFCC in the jugular .

The Brilliant Legal elocution is found in the profound provisions of Sections 19 & 45 of the Federal High Court Act and the Locus Classicus of Ibori v Federal Republic of Nigeria (2009) 3 NWLR Appeal No CA/K/81C/2008.

The gravamen of the provisions and staris decisis is of the authority that criminal trials are instituted in the jurisdiction of the Federal High Court where the cause of action accrued or where the crime was allegedly committed (In this case Lokoja in Kogi State ).If there was any extenuating circumstances that prevents such, the case must first be taken to the Chief Judge of the Federal High Court for direction .

That filing a suit outside the jurisdiction where the cause of action accrued with out first seeking the leave and direction of the Chief Judge of the Federal High Court, according to Authority of Ibori v FRN is Forum Shopping, which the Supreme Court has stated in a plethora of cases to also indicate judge shopping.

In order to fully understand this legal principle, I commend to my readers the authority of Ibori v. FRN as produced hereunder .

(2009)3NWLR
Iboriv.F.R.N.283
1.JAMES ONANEFE IBORI
2.UDOAMAKA OKORONKWO
V.
1.FEDERAL REPUBLIC OF NIGERIA

2.MER ENGINEERING LIMITED
3.BAINENOX LIMITED
4.SAGICON NIG. LTD.
COURT OF APPEAL
(KADUNA DIVISION)
CA/K/81C/2008
AMINA ADAMU AUGIE, J.C.A. (Presided and Read the LeadingJudgment)

Facts:

The appellants and the 2nd – 4th respondents/accusedpersons, which are limited liability companies, were arraignedbefore the Federal High Court, Kaduna. They were chargedwith committing sundry offences within the jurisdiction ofFederal High Court, Kaduna, in relation to certain amountof money, property of Delta State.

They pleaded not guilty to the 103-count charge ofcorrupt enrichment, money laundering etc, leveled againstthem. They later pleaded not guilty to 129-count amendedcharges. Subsequently, after the 1st and 2nd appellants wereadmitted to bail, the trial court adjourned the matter forhearing.

However, before the commencement of trial, theappellants filed an application before the court praying,amongst others: an order transferring the matter to theChief Judge of the Federal High Court for transfer andassignment to the judicial division where the 129 countsin the charge were allegedly committed; and an orderthat the presiding Judge recuse himself from furtherparticipation in the matter. The ground for the applicationwas that continuing with the trial in Kaduna would grosslyviolate the appellant’s right to fair hearing, particularlythe right and opportunity to adequately prepare theirdefence and the huge amount that would be involved inthe transportation and accommodation of their witnesses.They equally alleged that continuing participation by theJudge was going to constitute sufficient likelihood of bias.

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[2009]3NWLR

Iboriv.F.R.N.287

The 1st respondent however opposed the applicationon the ground that the court had the jurisdiction to trythe appellants and that it was not for the appellants tochoose the venue for their trial. They equally contendedthat the appellants had been sponsoring and financing thetransportation of hundreds of their supporters from DeltaState and other parts of the country to Kaduna on thesuccessive dates of adjournment and therefore had no logisticproblems as they claimed.

At the end of hearing, the trial court dismissed theappellants’ application and held that it had jurisdiction totry the matter.

Dissatisfied with the ruling of the trial court, theappellants appealed to the Court of Appeal. In determiningthe appeal, the Court of Appeal considered the provisionsof sections 19 and 45 of the Federal High Court Act andsection 36(1) of the 1999 Constitution which respectivelyprovide:

Sections 19 and 45 of the Federal High Court Act:

“19(1) The court shall have and exercise jurisdictionthroughout the Federation, and for that purposethe whole area of the Federation shall be dividedby the Chief Judge into such number of judicialdivisions or part thereof by such name as he maythink fit.

For the more convenient dispatch of business,the court may sit in any one or more judicialdivisions as the Chief Judge may direct, and hemay also direct one or more Judges to sit in any(2)one or more of the judicial divisions.

The Chief Judge shall determine the distributionof the business before the court amongst theJudges thereof and may assign any judicialfunction to any Judge or Judges or in respect of(3)a particular cause or matter in a judicial division.

Subject to the directions of the Chief Judge,every Judge of the court shall sit for the trial ofcivil and criminal causes or matters and for thedisposal of other legal business the Chief Judge(4)may think fit”

“45. Subject to the power of transfer contained in thisAct, the place for the trial of offences shall be asfollows:

An offence shall be tried by a courtexercising jurisdiction in the area or place(a)where the offence was committed.

288

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NigerianWeeklyLawReports23February2009

When a person is accused of the commissionof any offence by reason of anything whichhas been omitted to be done, and of anyconsequence which has ensued, suchoffence may be tried by a court exercisingjurisdiction in the area or place in whichany such thing has been done or omittedto be done, or any such consequence has(b)ensued;

When an act is an offence by reason of itsrelation to any other act which is also anoffence, a charge of the first-mentionedoffence may be tried by a court exercisingjurisdiction in the area or place either inwhich it happened, or in which the offencewith which it was so connected, happened;(c)or

(d)When:

It is uncertain in which of severalareas or places an offence was(i)committed; or

An offence is committed partlyin one area or place and partly in(ii)another; or

An offence is a continuing one andcontinues to be committed in more(iii)areas or places than one; or

An offence consists of several actscommitted in different areas orplaces, such offence may be triedby a court exercising jurisdiction in(iv)any of such areas or places;

An offence committed while the offenderis in the course of performing a journeyor voyage, may be tried by a court in orinto the area or place of whose jurisdictionthe offender or person against whom orthe thing in respect of which the offencewas committed resides, is or passed in the(e)course of that journey or voyage.”

Section 36(1) of the 1999 Constitution:

“36(1) In the determination of his civil rightsand obligations, including any question ordetermination by or against any governmentor authority, a person shall be entitled to a fairhearing within a reasonable time by a court orother tribunal established by law and constitutedin such manner as to secure its independenceand impartiality.”

[2009]3NWLR

Iboriv.F.R.N.289

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Held (Unanimously allowing the appeal):

1.On Distinction between judicial powers and jurisdiction-

Judicial power constitutes the authority a court hasto adjudicate and decide any matter before it whichis within its jurisdiction. Thus a court cannot exercisejudicial powers on matters outside its jurisdiction.Jurisdiction on the other hand refers to the authoritya court has to decide matters that are litigated beforeit or to take cognizance of matters presented in aformal way for its decision. [Mobil Producing (Nig.)Unltd. v. L.A.S.E.P.A. (2002) 18 NWLR (Pt. 798) 1referred to.] (P. 308) paras. F-G)

2.On Types of jurisdiction and distinction between –

Jurisdiction may be territorial or substantive.Substantive jurisdiction refers to matters over whichthe court can adjudicate, and it is usually expresslyprovided by the Constitution or enabling statutes.Territorial or geographical jurisdiction refers tothe geographical area in which matters broughtbefore the courts for adjudication arose. Courts areusually not seised of matters that occur outside theirterritory. Thus, where ingredients of an offence occuroutside the territorial jurisdiction of the court askedto adjudicate over the matter, such a court will notassume jurisdiction over the offence for apparentlack of jurisdiction. (Pp. 308-309, paras. G-A)

3.On Fundamental nature of issue of jurisdiction –

.When a question of jurisdiction of any court overa matter is raised, it transforms into one whichtouches the competence of the said court againstwhich it is raised. It is a fundamental and thresholdissue. Proceedings and judgments of a court whichlacks jurisdiction over a matter is a nullity no matterhow well conducted. A challenge to the jurisdictionof a court could be based on varied, diversified and

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variegated points. For instance, the challenge to jurisdictionin the instant case was that the matter was outsidethe limits of the territorial jurisdiction. [Ejiofodomiv. Okonkwo (1982) 1 All NLR (Pt.1) 285 referred to.](P. 323, paras. D-F)

Per OREDOLA, J.C.A. at page 323, paras. F-H:

“The concept of jurisdiction in legal terminologyis sacrosanct. It entails or includes the judex ofthe court to entertain, hear and determine amatter placed before it. Indeed, in its ambit, itrecognises and accommodates the territorialspread, coverage or geographical area ofauthority of the court in question coupled withthe nature, content or type of cases over whichit has power to hear and determine. Thus, wherea court lacks the initial jurisdiction over thesubject matter or person, it is not feasible thatthe jurisdictional missing link could be slottedin as a result of administrative convenience,arrangement or exigency.”

4.On Source of court’s jurisdiction and whether can beextended beyond its territorial limit –

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.A court’s jurisdiction is prescribed, embeddedor engraved in the statute which creates it. It isusually circumscribed and not open ended and atlarge. Thus, the fact that there is only one FederalHigh Court with divisions dotted all over thecountry for administrative convenience, logisticand other purposes, does not mean that any or alloffences allegedly committed by an accused personanywhere in Nigeria, can be tried in any divisionof the said Federal High Court. Ordinarily, andwithout express provision in the creating statute, acourt’s jurisdiction should not be extended beyondits territorial limit. Jurisdiction is not subject toemotion, sentiment, whims and caprices of anyone.It is firmly rooted and must be in accordance andconsonance with laid down provisions in the creatingstatute. In this case, the prosecution could not choose

[2009]3NWLR

Iboriv.F.R.N.291

at will where to prosecute the appellants. (P. 324, paras. B-D)

Per OREDOLA, J.C.A. at page 324, paras. E-D:

“It is to be noted that the alleged offence oftreason charged in the case of Abiola v. FRN(1995) 3 NWLR (Pt.382) 203 by its naturehas reverberating, resonating, disruptive anddamnifying effects all over the country. It is thusto be expected that such an alleged offence canbe tried anywhere in the country, moreso, whensegments of the planning towards commissionof the offence involved conspiracy which tookplace in different parts of the country. Thegiven facts and circumstances of this case aredistinct and can be distinguished from the onesin Abiola’s case. Indeed, the facts of this casediffer significantly from Abiola (supra) referredto by both parties herein and relied upon by the1 st respondent herein. Abiola (supra) involvedallegation of commission of treason which isan offence against both the territorial andsovereignty of the entity known as the NigerianState. It was thus triable anywhere in Nigeria.The instant case is not similar or akin to Abiola(supra). Hence, the same set of principles ortests on jurisdiction as in Abiola’s case cannotand should not be invoked thereon.

To my mind and understanding of relevantprovisions of applicable laws thereto, anaccused person should not be uprooted fromthe place of alleged commission of the offenceand be transplanted or supplanted in an entirelydifferent location or venue for the sole purposeof arraignment and standing trial in a criminalprosecution. I do not want to be misunderstood.I am not saying or suggesting by any meansthat an accused person should not be triedor prosecuted. All that I am saying is thatprosecution should not be conducted as if it werewith a shopping list with regards to what to buy

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and at where specifically and when precisely itcatches one’s fancy.

Furthermore, I do not think that the intentionof the framers of the 1999 Constitution of theFederal Republic of Nigeria and legislators, whoenacted the Federal High Court Act, was to giveabsolute, unfettered and unbridled jurisdictionto the Federal High Court vis-à-vis the venuefor the hearing and determining of any case,anywhere and at any place. A carte blanche ofa sort. If it were to be so, specific, emphatic andcategorical provisions would have been enactedin respect thereof. It has not been suggestedto us that this has been done and we have notfound it to be so.”

5.On Nature of criminal jurisdiction and whetherrecognises territorial jurisdictional limitations –

.Criminal jurisdiction is basically territorial.Jurisdiction in criminal matters in Nigeria isprincipally and mainly territorial. It depends, to alarge extent, on where the alleged offence, at leastthe initial element, part or essential ingredient of theoffence took place. Thus, if civil matters recogniseterritorial jurisdictional limitations, afortioricriminal matters, which by their very nature areinhibitive, restrictive and impinge on the liberty andfreedom of an accused person. (Pp. 323-324, paras.H-B)

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6.On Venue of trial of offence –

.It is not right, proper and fair for either theprosecution or the accused person to pick, choose,dictate, elect or select which court or Judge shouldhear and determine a matter in which it is involved.The venue or place of commission of an offencemust be given adequate consideration when acharge is to be filed in a criminal prosecution.Such consideration must be given or weighedalongside other laid down factors or parameters.Thus, mostly and invariably, an accused personshould be tried either at the place of commission

[2009]3NWLR

Iboriv.F.R.N.293

of the alleged offence or at a place which is the mostproximate to the place of commission of the allegedoffence. (P. 325, paras. D-F)

7.On Venue of trial of offences in the Federal HighCourt –

.By section 45 of the Federal High Court Act, offencesare to be tried by a court exercising jurisdiction inthe area or place where the offences were committed.In the instant case, the offences were allegedlycommitted in Delta State, and the respondentfiled the charges against the appellants directly inthe Kaduna Division of the Federal High Courtwithout going through the Chief Judge or anyone.In the circumstance, the institution of the matterin Kaduna Division of the Federal High Court waswrong. Therefore, it was ordered that the matterbe transferred to the Chief Judge of the FederalHigh Court for transfer and assignment to thejudicial division where the charges leveled againstthe appellants were allegedly committed. [Abiola v.F.R.N. (1995) 3 NWLR (Pt. 382) 203 referred to anddistinguished.] (Pp. 312, paras. D-E; 313-314, paras.G-E; 322, paras. F-G)

Per AUGIE, J.C.A. at pages 311-312, paras. G-A:

“In other words, the lower court assumedjurisdiction to hear the matter because there isonly one Federal High Court and Section 19 ofthe Economic and Financial Crimes Commission(EFCC) Establishment Act and section 19 of theMoney Laundering (Prohibition) Act vests theFederal High Court with exclusive jurisdictionover cases of Economic and Financial Crimes,which includes money laundering. But that iswrong. The provisions of sections 19 and 45 ofthe Federal High Court Act have absolutelynothing to do with the provisions of thesaid section 19 of the EFCC Act and MoneyLaundering (Prohibition) Act; they deal withcompletely different aspects of the jurisdictionof the Federal High Court.”

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Per OREDOLA, J.C.A. at page 325, paras. F-G:

“I am of the humble viewpoint that thejurisdiction vested in the Federal High Courtwith regards to criminal prosecution is nota blanket one or a blank cheque scenario. Itis still subject to other tests of jurisdictionwhich includes the giving of consideration toterritorial and geographical area of coverage orthe place of commission of the alleged offence.”

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8.On Establishment of the Economic and FinancialCrimes Commission –

The Economic and Financial Crimes CommissionAct established the Economic and Financial CrimesCommission which is charged with the responsibilityof co-ordinating the various institutions involved inthe fight against money laundering and enforcementof all laws dealing with economic and financialcrimes in Nigeria. (P. 312, para. A)

9.On Establishment and duties of Economic andFinancial Crimes Commission –

Economic and Financial Crimes Commission is astatutory body created/established by an Act of theNational Assembly. It is saddled with the duties ofinvestigating and prosecuting a class or categoryof criminal offences. Thus, once it prima facieestablishes that a person who is under investigationhas committed any of the specified offences, it has thebounden duty to prosecute such an accused person incourt and in accordance with established norms andprinciples of criminal jurisprudence, which includesrespect and recognition for territorial jurisdiction orvenue of trial with regards to criminal prosecution.(Pp. 325-326, paras. G-A)

10.On Jurisdiction to try offences under the Economicand Financial Crimes Commission Act –

By virtue of section 19(1) of the Economic andFinancial Crimes Commission Act, the Federal High

[2009]3NWLR

Iboriv.F.R.N.295

Court or High Court of the Federal Capital Territory hasjurisdiction to try offences under the Act. Equally,section 19 of the Money Laundering (Prohibition)Act also provides that the Federal High Court shallhave exclusive jurisdiction to try offences underthe Act. The said sections deal with the substantivejurisdiction of the courts. (P. 312, paras. B-C)

11.On Whether EFCC can choose where to arraign andprosecute an accused person –

.There is no provision in the Economic and FinancialCrimes Commission Act, to the effect that it canpick and choose at will or randomly, which court toarraign and prosecute an accused person. (P. 326,paras. A-B)

12.On Right to fair hearing –

.By section 36(1) of the 1999 Constitution, a personshall be entitled to a fair hearing within a reasonabletime by a court or other tribunal established bylaw and constituted in such manner as to secure itsindependence and impartiality. Equally, by section36(6)(b) of the same Constitution, every personwho is charged with a criminal offence shall beentitled to be given adequate time and facilities forthe preparation of his defence. Thus, an accusedperson is not only entitled to a fair hearing by anindependent and impartial court, he or she mustbe given adequate time and facilities by that courtfor the preparation of his defence. The right tofair hearing is a fundamental constitutional rightguaranteed by the Constitution. (P. 315, paras. D-G)

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13.On What fair hearing entails –

.Fair hearing envisages that both parties to a casemust be given the opportunity of presenting theirrespective cases without let or hindrance from thebeginning to the end. Fair hearing entails doingduring the course of trial all that will make an

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impartial observer to believe that the trial has been balancedand even to both sides. Fair hearing is also aboutperception. [Newswatch Comm. Ltd. v. Attah (2006) 12NWLR (Pt. 993) 144; Ezechukwu v. Onwuka (2006)2 NWLR (Pt. 963) 151 referred to.] (Pp.318, para.B; 320, paras. C-D)

14.On What fair hearing entails –

.The issue of fair hearing is one of substance and notform. Fair hearing is all about fairness. Fairnessis the determining factor for the application ofprinciples of natural justice. In other words, naturaljustice is fair play in an action. [A.-G., Rivers Statev. Ude (2006) 17 NWLR (Pt. 1008) 436 referred to.](Pp. 319, para. C; 320, paras. B-C)

15.On Test of fair hearing –

.The true test of fair hearing is the impression of areasonable man whether from his own observationjustice has been done in the case. (P. 320, para. D)

16.On Meaning of “forum shopping” –

.Forum Shopping occurs when a party attemptsto have his action tried in a particular court orjurisdiction where he feels he will receive the mostfavourable judgment or verdict. In this case, forthe Economic and Financial Crimes Commission tosought out the trial Judge and file the case before hiscourt amounted to forum shopping. (P. 320, para. H)

Per AUGIE, J.C.A. at page 321, paras. F-G:

“There is nothing on record, no gazette, nocircular, no order or even an administrativedirective from the Chief Judge of the FederalHigh Court showing that he was so designated,and can hear the matter in Kaduna. The onlyconclusion or reasonable inference one candraw is that EFCC preferred his court andthe only reason must be for forum shopping.

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[2009]3NWLR

Iboriv.F.R.N.297

17.On Attitude of court to forum shopping –

.Forum shopping is not a practice recognized orapproved under our laws. It is frowned upon,regarded and rightly too, as an aberration and anundisguised wilful attempt to punish an accusedperson before a verdict of guilt is returned in hiscriminal trial. Prosecution should not be convertedto persecution, open denial of fair hearing and anassault on well defined principles of natural justiceand the 1999 Constitution. Thus, an accused, as inthe instant case, could not be taken from Lagos toGashua for trial just like that without the law asforte.(P. 326, paras. B-C)

18.On Meaning of forum non conveniens –

Forum non conveniens means an unsuitablecourt. The phrase means, not that the court isnot convenient but that some other court is moresuitable. It is the doctrine that an appropriateforum, even though competent under the law, maydivest itself of jurisdiction if, for the convenience ofthe litigants and the witnesses, it appears that theaction should proceed in another forum in which theaction might also have been properly brought in thefirst place also. It is the doctrine whereby the courtrefuses to exercise its right of jurisdiction because,for the convenience of parties and in the interest ofjustice, a claim should be brought elsewhere. (Pp.320-321, paras. H-C)

19.NOTABLE PRONOUNCEMENT:

On Need for justice to be even handed –

Per AUGIE, J.C.A. at page 322, paras. B-E:

“I must also comment on the respondent’sargument that the appellants should notcomplain because they can afford to move thesaid 250 witnesses and relevant documents fromDelta State to Kaduna. This line of argument isquite disturbing and has no basis in our laws.Justice is justice for all, rich and poor alike and

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without fear or favour. The fact that the 1 stappellant is a former governor should have nobearing whatsoever on where he is tried as anaccused person.

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He is a Nigerian citizen and should be triedwhere others are being tried. There is definitelyno room in our criminal justice system fordifferent laws and different courts for differentcategories of Nigerian citizens. The respondentalso argued that the 2 nd appellant should notcomplain because the Delta State governmentpaid several sums of money into her account,which was later transferred abroad. Butthese are the very allegations for which she isstanding trial. She is presumed innocent untilproven guilty, and the respondent cannot usethe allegations that are yet to be proved by it toargue against her right to a fair hearing.”

Nigerian Cases Referred to in the Judgment:

A.-G., Rivers State v. Ude (2006) 17 NWLR (Pt. 1008) 436

Abiola v. F.R.N. (1995) 3 NWLR (Pt.382) 203

Ejiofodomi v. Okonkwo (1982) 11 SC 74

Ezechukwu v. Onwuka (2006) 2 NWLR (Pt. 963) 151

Kraus Thompson Org. Ltd. v. N.I.P.S.S. (2004) 17 NWLR(Pt.901) 44

Mobil Producing (Nig.) Unltd. v. L.A.S.E.P.A. (2002) 18NWLR (Pt. 798) 1

Newswatch Comm. Ltd. v. Attah (2006) 12 NWLR (Pt.993) 144

Nwankwo v. State (1983) 1 NCR 366

Nigerian Statutes Referred to in the Judgment:

Constitution of the Federal Republic of Nigeria, 1999,Ss. 36(1), 36(6)(b) and 249 – 252(2)

Economic and Financial Crimes CommissionEstablishment Act, S. 19(3)

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Federal High Court Act, Ss. 19(1), and 45

Money Laundering (Prohibition) Act, S. 19

[2009]3NWLR

Iboriv.F.R.N.299

Books Referred to in the Judgment:

Black’s Law Dictionary, 6th Edition

Black’s Law Dictionary, 7th Edition

Black’s Law Dictionary, 8th Edition

Longman Dictionary of Law, 7th Edition
Appeal:
This was an appeal against the ruling of the Federal HighCourt refusing the appellants’ application for transfer of theirmatter to the judicial division where the 129 counts in thecharge against them were allegedly committed. The Courtof Appeal, in a unanimous decision, allowed the appeal.

History of the Case:

Court of Appeal:

Division of the Court of Appeal to which the appeal wasbrought: Court of Appeal, Ibadan

Names of Justices that sat on the appeal: AminaAdamu Augie, J.C.A. (Presided and Read the LeadingJudgment); Abubakar Abdulkadir Jega, J.C.A.;Massoud Abdulrahman Oredola, J.C.A.

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Appeal No.: CA/K/81C/2008

Date of Judgment: Friday, 19th December, 2008

Names of Counsel: J. B. Daudu, SAN, (with him,Ken Mozia, Esq.; D. C. Enwelum, Esq.; JimOmoigberale, Esq.; Ade Okeaya-Inneh, Esq.; R.B. Daudu [Mrs.]; L. I. Ogor, Esq.; J. C. Ariahu[Mrs.]; and J. O. Okonta, Esq.) – for the Appellants

Rotimi Jacobs, Esq. (with him, Onjefu Obe, Esq.) -for the 1 st Respondent

Chief E. L. Akpofure, SAN (with him, E. Ohwovoriole,Esq.) – for the 2 nd – 4 th Respondents
Federal High Court:
Name of the Federal High Court: Federal High Court,Kaduna

Name of the Judge: M.L. Shuaibu, J.

Suit No.: FHC/KD/81C/C/2008

Date of Ruling: Monday, 10th March, 2008

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Counsel:

J. B. Daudu, SAN, (with him, Ken Mozia, Esq.; D. C.Enwelum, Esq.; Jim Omoigberale, Esq.; Ade Okeaya-Inneh, Esq.; R. B. Daudu [Mrs.]; L. I. Ogor, Esq.;J. C. Ariahu [Mrs.]; and J. O. Okonta, Esq.) – for theAppellants

Rotimi Jacobs, Esq. (with him, Onjefu Obe, Esq.) – forthe 1 st Respondent

Chief E. L. Akpofure, SAN (with him, E. Ohwovoriole,Esq.) – for the 2 nd – 4 th Respondents

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AUGIE, J.C.A. (Delivering the Leading Judgment): Theappellants and the three respondents/accused persons, whoare limited liability companies, were arraigned before theFederal High Court, Kaduna on the 13th of December, 2007.They pleaded not guilty to 103 count charges of corruptenrichment, money laundering, etc., levelled against them.They later pleaded not guilty to 129 count amended chargeson the 11th of January, 2008. After the 1st and 2nd appellantswere admitted to bail on the 11th of February, 2008, thelower court adjourned the matter to the 18th of February,2008, for hearing. However, before the commencement oftrial, the appellants filed an application dated 18th February,2008, praying for the following orders:

“(1) An order transferring this matter to the ChiefJudge of the Federal High Court for onwardtransfer and assignment to the judicial divisionwhere the 129 counts in this charge were allegedlycommitted on the ground that continuing withthe trial in Kaduna is;

Contrary to the provisions of the Federal(i)High Court.

Grossly violates the applicants’ right tofair hearing particularly the right andopportunity to adequately prepare theirdefence to the 129 counts made against(ii)them.

Kaduna is a forum non conveniens chosen by(iii)the EFCC for reasons of forum shopping.

[2009]3NWLR

Iboriv.F.R.N.(Augie,J.C.A.)301

An order that the presiding Judge honourableM. L. Shuaibu J. recuse himself from furtherparticipation in the above trial on the groundthat the infringements disclosed in constitute(2)sufficient likelihood of bias.

The application is supported by a 20-Paragraph affidavitdeposed to by the 1st appellant and a 21-Paragraph affidavitdeposed by the 2nd appellant, wherein they both averred thatthey were arrested by officials of the Economic and FinancialCrimes Commission (EFCC) on the 12th of December, 2007,accused of committing an offence within the jurisdictionof the Federal High Court, Kaduna, “in relation to certainamount of money, property of Delta State, which is allegedto have been transferred to a 3rd party for the benefit of theaccused persons and which have been labelled ‘proceeds ofcrime’. Furthermore, that none of the allegations have anyconnection with Kaduna and the alleged offences, properties,bank accounts, documents, evidence and witnesses are notin Kaduna; that the EFCC filed the charges directly withoutfollowing due process as required by the Federal High CourtAct; and that the entire allegation is woven around legitimateexpenditures of the Delta State government. They bothfurther averred as follows:

“That the said expenditures are justified bygovernment approvals and there exists a massivecollection of documents needed to effectivelydefend either through cross examination and/or through my defence most of which werenot adverted to by the prosecution in the threevolumes referred to above for obvious reasonsand these documents include my personal recordand various documents for which certified copieswill be sought from several banks, underwritingagencies, stockbrokers, travel agencies, airlinemanifests, Delta State Government, FederalGovernment of Nigeria etc include vouchers,approvals, minutes, gazettes, Executive councilminutes, security council minutes, Houseof Assembly motions, executive mandates,authority to release expenditures mandates andother relevant government instruments…” (The1 st appellant’s paragraph 12 and the 2 nd appellant’sparagraph 13)

“That it is both impracticable and impossible togather these vital materials for my defence withinone week for a variety of reasons –

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That my health suffered grievously whilein prison and I am only now seeking(i)appropriate medical attention.

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That it is not possible to fully brief mylegal team led by Mr. J. B. Daudu, SAN(ii)until I have fully recovered my health.

That I am aware that the 1999 Constitutionguarantees that I should be given adequate(iii)time and facilities to prepare my defence.

That 7 days after release from the longincarceration I suffered is not adequatetime for me to prepare my defence.” (1 stappellant’s paragraph 14 and 2 nd appellant’s(iv)paragraph 15)

“That the venue of the trial; Kaduna is inconvenientfor me to prepare my defence as most of mywitnesses (200 for the 1st appellant and 50 forthe 2nd appellant) are public servants in DeltaState and moving them a distance of over 700kilometres for the purpose of giving evidence willentail untold and unprecedented hardship:

In that I do not have the funds to movesuch a large number of witnesses from one(i)end of the country to the other.

That it will be risky to move such quantityof documentary exhibits from one end of(ii)the country to the other.

That great doubt exists whether thepresent administration of Delta Statewould willingly permit the movement ofher sensitive documents across such a vast(iii)distance.

That I cannot afford to move over(200 witnesses for 1st appellants and 50witnesses for the 2nd appellant) who arewilling to testify in my defence subjectto the provision of basic logistics such astransport and accommodation because of(iv)the unbearable expenditure involved.

That there are several divisions of theFederal High Court in and proximate toDelta State and the insistence of the EFCCto try me in Kaduna raises a presumptionthat they are looking for a favourable(v)forum to prosecute.

[2009]3NWLR

Iboriv.F.R.N.(Augie,J.C.A.)30

That my fundamental rights will be totallyand comprehensively violated if this trialcontinues at the Federal High Court,Kaduna before the Honourable M. L.(vi)Shuaibu, J.

That I desire to defend myself of theseallegations made against me so I requireadequate opportunity and a level playingfield for this purpose.” (1 st appellant’sparagraph 15 and 2 nd appellant’s paragraph(vii)16)

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“That it will be in the overall interest of justiceif this matter is transferred by the Chief Judgeof the Federal High Court to a judicial divisionof the Federal High Court proximate to DeltaState. (1 st appellant’s paragraph 18 and 2 nd appellant’sparagraph 19).

“That modern principles of justice is to bringthe latter; justice closer to the people and not toremove it to a very distant place. (1 st appellant’sparagraph 19 and 2 nd appellant’s paragraph 20)(Italics mine)

In opposing the application, the respondent/complainant(hereinafter referred to as the respondent) filed a 33paragraph counter affidavit deposed to by one Bello Yahaya,a Superintendent of Police attached to the EFCC, whereinit was averred as follows in paragraphs 15 to 25:

“15. That on each of the dates, when the matter cameup before this honourable court, hundreds ofapplicants’ supporters came to the court fromDelta State and other parts of the country.

16.That the newspapers reported how the applicants’supporters bussed in to Kaduna from Delta Stateand how they came to the court in large numbers.

17.That the 1st and 2nd accused/applicants have beensponsoring and financing the transportation ofhundreds of their supporters from Delta Stateand other parts of the country to Kaduna on thesuccessive dates of adjournment.

18.That senior officials of Delta State Governmentincluding Commissioners, both past and presenthave been coming to court with the supportersof the 1st accused/applicants in large numbers onevery adjourned dates.

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19.That I know …. That there is no Federal HighCourt sitting in Delta State.

20.That the supporters of the 1st and 2nd accused/applicants have been showing violent dispositionboth in court and outside the court premisesthereby endangering the lives of both theprosecution and the proposed prosecutionwitnesses.

21.That the 1st and 2nd accused/applicants’ supportersattacked the prosecution counsel and pulled downthe wall of the court premises on 17th December,2007 when the oral application for bail wasrefused.

22.That since then, the 1st and 2nd accused/applicants’supporters have been showing violent dispositionin the court premises by singing war songs anduttering unprintable words against prosecutioncounsel and the court.

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23.That investigation conducted by my team inconjunction with other security agencies in Deltaand other neighbouring states revealed that the1st accused/applicant has a squad comprisingmilitant young men in the Niger Delta.

24.That on each adjourned dates, not less than fivehundred anti-riot policemen are usually deployedto quell the hostility of the 1st and 2nd accused/applicants’ supporters.

25.That in view of the foregoing, it would bedangerous to conduct the trial of the accused/persons in Delta State or any other states closeto their area of influence.”

The deponent, Bello Yahaya, further averred as followsin paragraph 28:

“That I was informed by Rotimi Jacobs Esq., thelead prosecution counsel on 28th February, 2008and I verily believe him as follows:

That this honourable court has thejurisdiction to try the 1st and 2nd accused/applicants for the offences alleged against(a)them.

That it is not for an accused person to(b)dictate or choose the venue for his trial.

That this application is brought malafide with the intention to frustratethe order of accelerated hearing(c)made by this honourable court.”

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Both appellants filed similar replies of 17 paragraphs,wherein they denied most of the averments in the respondent’scounter affidavit. The application was argued on the 5th ofMarch, 2008 and in his ruling dated 10th March, 2008, thelearned trial Judge, Shuaibu, J., held that the Federal HighCourt, Kaduna, is the proper venue for the trial and that thecharges against the appellants were validly filed in the court.Dissatisfied with the decision, the appellants appealed to thiscourt with notices of appeal containing six grounds of appealeach, and in the appellants’ brief of argument settled by J.B.Dauda, SAN, it was submitted that the following issues fordetermination arise therefrom:

“1. Whether the provisions of section 45 of the FederalHigh Court Act read along with Section 19 ofthe same Act which prescribed as a conditionprecedent to the exercise of the Federal HighCourt’s jurisdiction in criminal matters that trialsshall be initiated in the judicial divisions wherethe offences are alleged to have been committedare subordinated to and do not derogate fromthe general jurisdiction of the FHC to try certaincriminal matters as provided for in section 249-352 of the 1999 Constitution?

2.Whether the initiation of criminal proceedingsin Kaduna hundreds of kilometres away fromthe venue of the alleged offences and the specialchoice by the prosecution of the judex willnot or has not impaired the accused persons’constitutional right to be tried by an independentand impartial tribunal or court and in additionthrown into jeopardy their fundamental right toadequate facilities and time for the preparationof their defence?

3.Whether the act of the prosecution in directlyfiling the 170 count charge in the FHC Kadunain contravention of the provisions of sections19 and 45 of the FHC Act amounts to forumshopping capable of being viewed by reasonablepersons as occasioning a strong likelihood of biason the part of the learned trial Judge honourableShuaibu, J.?

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4.Where the Court of Appeal resolves theabove issues against the prosecution andin favour of the appellants what is theappropriate consequential order to make and 306

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whether the subsequent proceeding of amending thecharge after the ruling was read is not void?”

The respondent initially raised an objection to thecompetency of the appeal in its own brief prepared by RotimiJacobs, Esq., however, Mr. Jacobs withdrew the objectionat the hearing of this appeal and it is accordingly struck out.Nonetheless, the respondent formulated two issues that itsubmitted, calls for determination in this appeal, that is:

1.Whether the Federal High Court sitting inKaduna is not competent to hear and determinethe offences of money laundering preferred inCharge No. FHC/81/2007 against the appellantson the ground that the alleged offences were notcommitted within Kaduna Judicial Division.

2.Whether the learned trial Judge was wrong tohave held that a likelihood of bias to justify hisrefusal from the matter was not established bythe appellants.

It is my view however, that apart from the appellants’issue 4 on the consequential order to make, all the otherissues are easily subsumed into – whether the Federal HighCourt, Kaduna, is the right forum to try the appellants foroffences allegedly committed in Delta State, and concerningmoney/property belonging to the Delta State Government.

The appellant’s position is that Section 19 and 45 of theFederal High Court Act read together mandatorily placesthe venue of their trial in the Federal High Court exercisingjurisdiction in the area or place where the offences allegedagainst them were allegedly committed. However, therespondent’s stance is that there is only one Federal HighCourt in Nigeria, and an action filed in a particular divisionof the said court cannot strip it of jurisdiction to try the case.In agreeing with the respondent, the learned trial Judge heldas follows on this issue:

“…. Section 19(1) of the Federal High Court Act,emphatically states that the court shall have andexercise jurisdiction throughout the Federation.Also, the provision of section 249 of the 1999Constitution established one Federal High Court.Thus, a community reading of Sections 19 and45 of the Federal High Court Act does not takeaway the jurisdiction of the Federal High Courtirrespective of where it is sitting. The Court ofAppeal decision in Abiola v. Federal Republic of

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Nigeria (1995) 3 NWLR (Pt.382) 203 per Opene,JCA aptly stated the position as follows:

‘As there is one Federal High Court, itfollows that the jurisdiction of the courtextends throughout the whole country.’

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And even if the provision of sections 19 and 45 of theFederal High Court Act are meant to limit the venueof the trial in this court to an area or place where theoffence is allegedly committed, which is not the correctposition such cannot still be the case on the strength ofthe unequivocal positions of Section 19 of the MoneyLaundering (Prohibition) Act. Also, the said Section19 and 45 of the Federal High Court Act cannotderogate from the provisions of the sections 249to 252 of the 1999 Constitution”.

(Italics mine)

The appellants argued that the lower court erred inrelying on section 249 of the 1999 Constitution, whichprescribes the general jurisdiction of the Federal High Courtto justify the assertion of jurisdiction in Kaduna; that thecourt’s duty is to interpret the clear provisions of the Act bygiving them their ordinary interpretation; and that it is notits function to sympathise with a party in the interpretationof a statute merely because the language of the statute isharsh or will cause hardship, citing Kraus Thompson Org. v.NIPSS (2004) 17 NWLR (Pt.901) 44.It was further arguedthat the literal and ordinary interpretation of Sections 19and 45 of the Federal High Court Act, which the learnedtrial Judge agreed with, is that offences shall be tried in thejudicial divisions where they are alleged to have occurredand that as far as distribution of business, whether civil orcriminal, is concerned the power to distribute them is vestedexclusively in the Chief Judge of the Federal High Court,who is empowered to act through Administrative Judgesappointed for the judicial division. Consequently, that readingboth statutory provisions together, the charges ought to havebeen instituted in the judicial division where the offenceswere allegedly committed.

In arguing that the lower court was right to holdas it did, the respondent made copious reference to thecase of Abiola v. FRN (supra), and it was submitted thatby the doctrine of stare decisis, it would be wrong for thelower court not to apply the decision of this court in thatcase; that the arguments and laws considered therein

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are the same ones considered by the lower court in this case;that lower courts have an obligation to follow the decisions ofhigher courts, and it would amount to judicial impertinencefor a lower court to refuse to follow the decision of a highercourt, thus the lower court was perfectly in order to havefollowed the decision of this court in Abiola’s case.

The appellants however submitted in their reply briefthat the respondent’s argument that the lower court wasbound by the decision in Abiola v. FRN (supra), “is basedessentially on a misunderstanding of the decision in thatcase and an attempt to contort the facts of this case to fitinto the decision in the Abiola case”; and that the facts andcircumstances of that case are clearly different from thiscase, so the principles of law to be applied in both casescannot be the same. Furthermore, that the 1st respondent’sarguments creates the wrong impression that the section 45of the Act is otiose and without meaning or importance;and that the delimiting of the territorial jurisdiction of eachcourt is for the better administration of justice and cannotbe circumvented without just cause, but taking them “fromDelta State to Kaduna, by passing several Federal HighCourts in Benin, Akure, Enugu, Port Harcourt, Minna andAbuja and heading straight to Kaduna cannot be consideredto be in the best interest of the administration of justice”.

To resolve this issue, we will have to look closely at thereasoning of the lower court, bearing in mind that there is adistinction between judicial powers and jurisdiction, whichin turn is also of various types. Judicial powers constitutesthe authority a court has to adjudicate and decide any matterbefore it, which is within its jurisdiction. Thus, a court cannotexercise judicial powers on matters outside its jurisdiction.Jurisdiction, on the other hand, refers to “the authority acourt has to decide matters that are litigated before it or totake cognisance of matters presented in a formal way forits decision”. See Mobil Producing (Nig) Unlimited v. LASEPA(2002) 18 NWLR (Pt.798) 1.Jurisdiction may be territorialor substantive, inter alia. Substantive jurisdiction refers tomatters over which the court can adjudicate, and it is usuallyexpressly provided by the constitution or enabling statutes.

Territorial or geographical jurisdiction refers tothe geographical area in which matters brought beforethe courts for adjudication arose. Courts are usuallynot seised of matters that occur outside their territory.Thus, where ingredients of an offence occur outside the

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territorial jurisdiction of the court asked to adjudicate overthe matter, such a court will not assume jurisdiction overthe offence for apparent lack of jurisdiction. The applicationin this case was brought pursuant to Sections 19 and 45 ofthe Federal High Court Act. Section 19 provides as follows:

“1. The court shall have and exercise jurisdictionthroughout the Federation, and for that purposethe whole area of the Federation shall be divided bythe Chief Judge into such number of judicial divisionsor part thereof by such name as he may think fit.

2.For the more convenient dispatch of business, thecourt may sit in any one or more judicial division asthe Chief Judge may direct, and he may also directone or more Judges to sit in any one or more ofthe judicial division.

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3.The Chief Judge shall determine the distribution of thebusiness before the court amongst the Judges thereofand may assign any judicial function to any Judge orJudges or in respect of a particular cause or matterin a judicial division.

4.Subject to the directions of the Chief Judge, everyJudge of the court shall sit for the trial of civil andcriminal causes or matters and for the disposal ofother legal business the Chief Judge may think fit”

.(Italics mine)

And section 45 of the Federal High Court Act furtherprovides as follows:

“Subject to the power of transfer contained inthis Act, the place for the trial of offences shallbe as follows:

An offence shall be tried by a court exercisingjurisdiction in the area or place where the(a)offence was committed. (Italics mine)

When a person is accused of the commissionof any offence by reason of anything whichhas been omitted to be done, and of anyconsequence which has ensued, suchoffence may be tried by a court exercisingjurisdiction in the area of place in which anysuch thing has been done or omitted to be(b)done, or any such consequence has ensued;

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When an act is an offence by reason of itsrelation to any other act which is also anoffence, a charge of the first-mentionedoffence may be tried by a court exercisingjurisdiction in the area or place either inwhich it happened, or in which the offencewith which it was so connected, happened;(c)or

(d)When:

It is uncertain in which of severalareas or places an offence was(i)committed; or

An offence is committed partlyin one area or place and partly in(ii)another; or

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An offence is a continuing one andcontinues to be committed in more(iii)areas or places than one; or

An offence consists of several actscommitted in different areas orplaces, such offence may be triedby a court exercising jurisdiction in(iv)any of such areas or places;

An offence committed while the offenderis in the course of performing a journeyor voyage, may be tried by a court in orinto the area or place of whose jurisdictionthe offender or person against whom orthe thing in respect of which the offencewas committed resides, is or passed in the(e)course of that journey or voyage.”

In its ruling, the lower court examined the reliefssought, and after considering the affidavit evidence andarguments of counsel, held that:

“….The issue of designation is not borne out ofthe case of the accused/appellants and hence thecourt is called upon only to determine the issue ofvenue and propriety or otherwise of filing the chargedirectly in this court. The provision of Section 45 ofthe Federal High Court Act as well as Section 64 ofthe Criminal Procedure Act no doubt deals with thevenue of the trial in which it provides that an offencewill be tried by a court exercising jurisdiction in anarea or a place where the offence was committed.Then the obvious question that follows is which court

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exercises jurisdiction to try money launderingor other related matters in Delta State where theoffences in the one hundred and twenty nine wereallegedly committed? I have also in the course ofthis ruling reproduced the relevant provisions ofSection 19(1) of the Federal High Court Act,which emphatically states that the court shallhave and exercise jurisdiction throughout theFederation. Also the provision of section 249 ofthe 1999 Constitution established one FederalHigh Court. The provision of section 252(2) ofthe Constitution also confers additional powerson the Federal High Court thus:-

‘(2) Notwithstanding subsection one of thisSection, the National Assembly may bylaw make provisions conferring upon theFederal High Court powers additional tothose conferred by this section as mayappear necessary or desirable for enablingthe court more effectively to exercise itsjurisdiction’.

Thus, a community reading of Section 19 and 45 ofthe Federal High Court Act does not take away thejurisdiction of the Federal High Court irrespectiveof where it is sitting. …. And even if the provisions ofsections 19 and 45 of the Federal High Court Act aremeant to limit the venue of the trial in this court to anarea or place where the offence is allegedly committed,which is not the correct position, such cannot still bethe case on the strength of the unequivocal positionsof Section 19 of the Money Laundering (Prohibition)Act ….”

(Italics mine)

In other words, the lower court assumed jurisdictionto hear the matter because there is only one Federal HighCourt and section 19 of the Economic and Financial CrimesCommission (EFCC) Establishment Act and Section 19 of theMoney Laundering (Prohibition) Act vests the Federal HighCourt with exclusive jurisdiction over cases of Economic andFinancial Crimes, which includes money laundering. But thatis wrong. The provisions of Section 19 and 45 of the FederalHigh Court Act have absolutely nothing to do with theprovisions of the said Section 19 of the EFCC Act and MoneyLaundering (Prohibition) Act; they deal with completelydifferent aspects of the jurisdiction of the Federal High

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Court. The EFCC Act established the Economic and FinancialCrimes Commission (EFCC), which is “charged with theresponsibility of coordinating the various institutions involvedin the fight against money laundering and enforcement of alllaws dealing with economic and financial crimes in Nigeria”.Section 19(1) of the Act reads as follows:

“The Federal High Court or High Court of theFederal Capital Territory has jurisdiction to tryoffenders under this Act.”

Section 19 of the Money Laundering (Prohibition)Act also provides that “the Federal High Court shall haveexclusive jurisdiction to try offences” under the Act. Theseare general provisions in the Acts of the National Assemblyon the statutory or substantive jurisdiction of the FederalHigh Court; they subtract nothing from the provisions ofthe Federal High Court Act dealing with the geographicaljurisdiction of its divisions. Section 45 of the Federal HighCourt Act specifically provides that offences are to be triedby a court exercising jurisdiction in the area or place wherethe offences were committed. In this case, the offences wereallegedly committed in Delta State, and the respondent filedthe charges against the appellants directly in the KadunaDivision of the Federal High Court without going throughthe Chief Judge or any one.

There is nothing in the respondent’s counter affidavitsetting out the criteria used or reason for choosing the FederalHigh Court in Kaduna. The respondent merely averred asfollows in paragraphs 19 to 25:

19.That I know as a fact that there is no FederalHigh Court sitting in Delta State.

20.That the supporters of the 1st and 2nd accused/applicants have been showing violent dispositionboth in court and outside the court premisesthereby endangering the lives of both theprosecution and the proposed prosecutionwitnesses.

21.That the 1st and 2nd accused/applicants’ supportersattacked the prosecution counsel and pulled downthe wall of the court premises on 17th December,2007 when the oral application for bail wasrefused.

22.That since then, the 1st and 2nd accused/applicants’supporters have been showing violent disposition inthe court premises by singing war songs and uttering

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Iboriv.F.R.N.(Augie,J.C.A.)313
unprintable words against prosecution counsel and thecourt.

23.That investigation conducted by my team inconjunction with other security agencies in Delta andother neighbouring states revealed that the 1 st accused/applicant has a squad comprising militant young menin the Niger Delta.

24.That in each adjourned dates, not less than fivehundred anti-riot policemen are usually deployed toquell the hostility of the 1 st and 2 nd accused/applicants’supporters

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25.That in view of the foregoing, it would be dangerous toconduct the trial of the accused/persons in Delta Stateor any other states close to their area of influence.

.(Italics mine)

.The appellants however averred as follows in paragraphs6 to 8 of their respective replies to the respondent’s counteraffidavit:

That in respect of paragraph 19 of the counteraffidavit, it is a matter of common knowledgethat even though there is no Federal High Courtin Delta State, there is such a court with severalJudges in Benin City, Edo State, which serves(6)Delta State.

That paragraphs 20 – 23 of the counter affidavit isuntrue as most of the demonstrators that I saw onthose dates were those carrying placards preparedby the EFCC, which unjustly and unfairly painted(7)me as a criminal or corrupt person.

That the FGN has the resources as shown inparagraph 24 of the counter affidavit to providesecurity in any part of the Federal Republic of(8)Nigeria.

The respondent conceded in its brief that the nearestcourt to Delta State is the Benin division of the FederalHigh Court, but without any explanation the appellants werepicked up and taken to Kaduna where they were arraignedover offences allegedly committed in Delta State.

The lower court relied on the decision of this courtin Abiola v. FGN (supra), to justify the respondent’s actionin choosing its court directly, but Abiola’s case is easilydistinguishable from this one. To start with, the chargesagainst Abiola related to treason, which is “the offence ofattempting to overthrow the government of a state to whichone owes allegiance, either by making war against the state

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or by materially supporting its enemies”. See Black’sLaw Dictionary, 8th Ed. Treason, as the appellants rightlysubmitted, therefore “relates to the entire country andcan consequently be tried in Abuja which is the seat ofgovernment”. This case, on the other hand, relates tooffences of corrupt enrichment and money laundering, whichwere allegedly committed by the appellants when the 1stappellant was the governor of Delta State, and the chargesare therefore localised to Delta State.

If the respondent felt so strongly that it would not be safefor it to try the appellants in the Benin division of the FederalHigh Court, which overseas Delta State, then it should havetaken the matter to the Chief Judge of the Federal HighCourt for assignment to any other division. Filing the chargesagainst the appellants directly at the Kaduna Division ofthe court for offences allegedly committed in Delta State,without recourse to the Chief Judge or any directive to thateffect goes against the spirit and essence of the provisions ofthe Federal High Court Act, which vests the Chief Judge ofthe Federal High Court with the power to create and assignany judicial function to any Judge or Judges in a judicialdivision, and which also stipulates that offences shall be triedin the judicial divisions where they are alleged to have beencommitted. The appellants also complained that initiatingcriminal proceedings in Kaduna drastically abridged theirfundamental right to fair hearing. They submitted as followsat page 17 of their brief.

“…. It is a matter of great concern how theappellants will transport their over 250 witnessesand volumes of documents, which appear … tobe relevant for their defence. The prosecution’sanswer is to say; well the appellants are rich andcan afford the cost of such defence anywhere inNigeria. Assuming for a moment … (though notconceded) that this is the correct position and thatin reality the appellants can afford to foot the costof the unwholesome jamboree of ferrying witnessesfrom one end of the country to the other, has theprosecution taken into consideration the state ofmind of the civil servants who would undertakethe journey? How can anyone guarantee theintegrity of the mass of documentary exhibits,which are still in the custody of the Delta StateGovernment and intended for use at the trial inthe defence of the accused persons after such an

[2009]3NWLR

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Iboriv.F.R.N.(Augie,J.C.A.)315

unnecessary and arduous journey? The prosecutionin reality had no answer to these fundamentalissues…”.

On its part, the respondent averred in paragraphs 26(a)to and paragraphs 27(i) to of its counter affidavitthat after investigations carried out with the LondonMetropolitan Police, it found that the 1st appellant hasproperties, monies and companies in Nigeria, England, SouthAfrica, Switzerland, Panama, British Virgin Island and otherislands; and that the 2nd appellant is also very wealthy withproperties and money in Nigeria and the United Kingdom. Itthen argued in its brief that it is untenable for the appellantsto argue that Kaduna was not a proper forum for them topresent their witnesses due to lack of funds, and that theprovisions of the Criminal Procedure Act and Evidence Actare replete with provisions on how witnesses can be broughtto court.

Now, the right to fair hearing is a fundamentalconstitutional right guaranteed by the constitution. Section36(1) provides as follows:

“In the determination of his civil rightsand obligations, including any question ordetermination by or against any government orauthority, a person shall be entitled to a fair hearingwithin a reasonable time by a court or other tribunalestablished by law and constituted in such manner asto secure its independence and impartiality.”

And section 36(6)(b) of the same Constitution alsoprovides as follows:

“Every person who is charged with a criminal offenceshall be entitled to:

Be given adequate time and facilities for the(b)preparation of his defence”.

Thus, an accused person is not only entitled to a fairhearing by an independent and impartial court, he or shemust be given adequate time and facilities by that court forthe preparation of his or her defence.

The appellants’ grouse is that it would be oppressive andinjurious to their fundamental right to fair hearing to continuethe trial in Kaduna. They referred this court to Nwankwov. State (1983) 1 NCR 366 where this court deprecated instrong terms the attitude of the prosecution in looking fora favourable judex to prosecute a person, particularly thecondemnation of Belgore, JCA (as he then was), thus:

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“……It is true that one would normally frownat the procedure whereby the accused is based atEnugu, the complainant is similarly based at Enugu,the accused directly gave copies of the offensivepublication to one of the witnesses, EmmanuelOkala, at Enugu, the victims of the publication – thegovernment of Anambra are based at Enugu, andpresumably the application for consent was madeat Enugu, yet one finds the case being sent to aparticular court in Onitsha. It does not augur well forthe independence of the judiciary to indulge in thispractice. There are capable and eminent Judgesin Enugu who could have taken the case. …. Ina democracy, the executive may falter, the legislaturemay overstep its bounds, it is the judiciary that holdsthe balance between the two. It is the norm in Nigeriathat once a person’s right seems threatened he says“I shall go to court.” When one of the two arms startschoosing which court to go to, and goes to one faraway when many are at his doorstep, the impartialityof the judiciary could be questioned. ….

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It beats my imagination how the case foundits way from Enugu. With the attitude of thelearned trial Judge to the preliminary objectionson matters touching squarely on the foundationsof the propriety of the procedure whereby thecase was brought, and thus whether it was validlybrought, I fear the Judge left much to be desired”.

(Italics mine)

Olatawura, JCA (as he then was) also stated as followsin that case:

“A lot of time was spent considering whether theappellant had a fair hearing … Where an accusedcan be easily tried in his place of residence andwhere nearly all the five witnesses reside in thesame town, but he is made to travel about 100km to answer a charge which carries a maximumpunishment of two years’ imprisonment, hecannot be said to have a fair hearing. A fairhearing as postulated by the Attorney-General inhis able submission on the point does not stop withthe accused’s opportunity to cross examine, give

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evidence and have a lawyer of his choice, but shouldinclude the opportunity to have the case against himheard in a place where the offence was committed, andnot where jurisdiction is conferred by manipulations.…

Appeal is allowed