EBUBEDIKE V FRN.

EBUBEDIKE V FRN.


IN THE COURT OF APPEAL OF NIGERIA
ON THURSDAY, THE 21ST DAY OF NOVEMBER, 2013


APPEAL NO: CA/L/611/11

CITATION: CA (2013) 11 LLIR 1

Before Their Lordships

SIDI DAUDA BAGE, J.C.A.

CHINWE EUGENIA IYIZOBA, J.C.A.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.


BETWEEN

AGNES U. EBUBEDIKE

(APPELLANTS)

AND

1. FEDERAL REPUBLIC OF NIGERIA
2. OKEY NWOSU
3. DAYO FAMOROTI
4. DANJUMA OCHOLI Respondents

RESPONDENTS

 
 


LEAD JUDGEMENT DELIVERED BY BAGE, J.C.A.


 

This is an appeal by the Appellant (4th Defendant in the Lower Court), against the decision of Okunnu J, of the High Court of Lagos State delivered on 24th May, 2011. The learned trial judge dismissed the Appellant’s Notice of Preliminary Objection challenging the competence of the information preferred against him and the jurisdiction of the trial Court to entertain same.

The background facts of the case is as follow:

1.01 The Appellant is a former Executive Director of Finbank Plc. During her tenure as Acting Executive Director, she was based in Abuja and her main Port-folio was Operations and Information Technology. In that capacity, her responsibility was basically for banking operations and information technology issues.

1.02 Sometime in August 2009, the Central Bank of Nigeria (CBN) removed the Managing Director of Finbank Plc along with other directors of the Bank and subsequently referred the Appellant along with the other removed directors to the Economic and Financial Crimes Commission (EFCC) for prosecution on account of alleged financial crimes in the banking sector and capital market.

1.03 The 4th Defendant/Appellant along with four others was arraigned by the EFCC, on an 11 count charge before the Federal High Court in Charge No. FHC/L/293c/2009, FRN VS. OKEY NWOSU and subsequently admitted to bail. The charge was subsequently amended on 9 November, 2009 to an Amended 90 count charge involving, inter alia, allegations of offences committed under the Investments and Securities Act 2007 (counts 1 – 13).

1.04 After her arraignment, the Appellant alongside other accused were admitted to bail on the condition that on the 1st working day of every month the Appellant must report at the 1st Respondent’s office, thereafter applications were filed to quash the charges on jurisdictional grounds and the absence of a prima facie case among other grounds. On 23 July 2010, his Lordship Abutu J, delivered a Ruling upholding the applications and quashed 47 counts out of the 90 count charges leaving an outstanding of 43 counts. The Appellant promptly filed a Notice of Appeal to the Court of Appeal against the decision of the court to sustain the other 43 charges and applied for a stay of proceedings.

1.05 The Respondent, however on 18 October 2010 filed an Amended Charge after the appeal had been lodged. Prior to the amendment of the charges, specifically on the 2nd of November 2009, the Respondent had on its part commenced Administrative proceedings committee (APC) proceedings at the Securities and Exchange Commission against the Appellant on the same allegations of misconduct in the capital market.

1.06 The Appellant through her counsel participated in the hearing of the said proceedings with other Respondents wherein various objections and preliminary issues were raised. The Appellant as well filed a response brief to allegations of findings against her and the matter was accordingly adjourned after all Respondents were heard.

1.07 Notwithstanding the pendency of this administrative proceeding of the SEC and the criminal proceedings against the Appellant, the Respondent purportedly in pact with the CBN further invited the Appellant for interrogation under what the Respondent described in on invitation letter dated 11 May 2010 as a “CBN/SEC” task force” investigation the intervened banks. The Appellant in view of pending proceedings against her and upon the advice of her counsel regarding the non statutory nature of the body (described as a joint task force established by the Respondent and the CBN) refrained from appearing before the said task force as no written invitation was sent to her.

1.08 The Respondent further to the above initiated an action as a complainant before the Investment and securities Tribunal in 1ST Suit No: 1ST/OA/8/2010 on the same set of facts. This matter is also pending before the 1ST.

1.09 While the Appellant went on her monthly visit to the EFCC on the 1st working day in May 2011 in
fulfillment of her bail conditions, she was detained by the 1st Respondent and served with a new charge preferred against her at the state High court on the same set of facts as in the Charge No. FHC/L/CS/293C/2009 and Suit No. 1ST/OA/8/2010 where she is currently standing trial. The Appellant promptly objected to the new charges before the State High Court on grounds of lack of jurisdiction abuse of process and double jeopardy.

1.10 In her Ruling delivered on 24 May 2011 Okunnu J, dismissed the application and held that the State High Court had jurisdiction to entertain the matter and that there was no abuse of process, neither would the accused be prejudiced. Being dissatisfied with the Ruling of Okunnu J. the Appellant appealed to this Court by a Notice of Appeal dated 17 June 2011.

Appellants brief settled by I. A. Adedipe, SAN.

ISSUES FOR DETERMINATION

From the grounds of appealed filed, the following issues arise for determination:

a. Whether the charges before the State High Court are not one and the same with that which the Appellant was charged before the Federal High Court thereby constituting an abuse of process of the court and as a result prejudice the Appellant.

b. Whether the Attorney General of Lagos State can delegate its constitutional duty of prosecuting state offence to the Attorney General of the Federation under Section 211 of 1999 Constitution.

Rotimi Jacobs Esq., of Rotimi Jacobs & Co. settled the Respondents brief of argument dated and filed 28th of June, 2013. Two issues were identified and formulated for determination by the learned counsel as follows:

  1. Whether the learned trial judge was wrong when his Lordship herd that the information preferred against the Defendant/Appellant at the High Court of Lagos State did not constitute an abuse of Court process. See Grounds 1, 2, 3 & 4.
  2. Whether the delegation of prosecutorial powers by the Attorney General of Lagos state to the Attorney General of the Federation and the Economic and Financial Crimes Commission to prosecute the Appellant for the offence of stealing prescribed under the Criminal Code Law of Lagos state was unconstitutional and/or improper. See Ground 5.
    At the hearing of the appeal, each learned counsel for respectively the parties adopted and relied on their briefs of argument as their submissions on the appeal.

Having perused the issues for determination formulated by each counsel in this appeal, it is glaring to me that the Appellant’s issue (1) is the same essentially as the Respondent’s issue (1). So also, the Appellants issues 2, and 3 is the same as Respondents issue 2. Appellants issue 3 is the same with the Respondents Issue 3. In the circumstances, I adopt the issues for determination formulated in the Respondents brief of argument in my consideration of this appeal. I shall follow the order as established in the Respondents brief of argument.

Issue 1. This relates to the decision of the learned trial judge, that the Lagos Court possess the requisite jurisdiction on the offences allegedly committed by the Appellant in the course of capital market transactions.
Learned counsel to the Appellant submitted that, the High court of Lagos state lacks jurisdiction to entertain the information preferred against the Appellant in so far as it concerns an action between the Federal Government of Nigeria and another party, further, the pith and substance of the complaint concerns a matter of capital issue which is item 12 on the Exclusive Legislative List, whilst the subject of Legal Proceedings between the Federal Government and other parties is item 35 of the Exclusive Legislative List.

Learned counsel further submitted that only the Federal High Court can entertain matters coming within the exclusive legislative list that is, matters over which only the National Assembly can legislate. See Section 251 (i) (s) of the Constitution of the Federal Republic of Nigeria. Also Section 7 (3) of the Federal High Court Act, 2004 CAP F12. See FEDERAL REPUBLIC OF NIGERIA VS. JONAH ONYEBUCHI EZE (1982) 3 NCLR 249 at 267.

Learned counsel further submitted that, the range of subjects in the Exclusive Legislative List is broadened by item 68 which empowers the National Assembly to Legislative over “any matter incidental or supplementary to any other matter mentioned elsewhere in this list” of specific relevance to this appeal is item 35 of the Exclusive Legislative List in part 1 of the second schedule to the 1999 Constitution which vests in the National Assembly the power to legislate over legal proceeding between the Governments of States or between the Government of the Federation and Government of any State or any other authority or person. Further there is item 12 which deals with “Control of Capital Issues” and item 32 which deals inter alia with the “incorporation, regulation and winding up of bodies corporate…”‘ It is this item which empowers the National Assembly to legislate on Capital Market infractions and to enact the Investment and Securities Act, 2007.

Learned counsel submitted further that clearly on the face of item 35 alone, the trial judge ought to have upheld the plea of jurisdiction, but that apart, the proof of evidence also show that the information was in pith and substance concerned with the subject of the control of Capital issues and also comes within item 12 of the exclusive legislative list. This again reinforces the contention that the information should have been filed at the Federal High Court.

In response to these submissions, learned counsel to the 1st Respondent submitted that, the Appellant’s contentions above depict a misunderstanding and a misconception of the concept of devolution of powers between the Federal and the state Government. The Appellant relied on items 12 and 35 in the Exclusive Legislative List and elevated the criminal Proceeding against him at the Lagos High court to a proceeding between the Government of the Federation and himself, as an individual. This is certainly a misconception of the law. Perhaps, the misconception arose as a result of the fact that the information was initiated by the Attorney General of the Federation and the EFCC in the name of the Federal Republic of Nigeria.

The fact that the Economic and Financial Crimes Commissions is an agency of the Federal Government charged with the responsibility of investigating and prosecuting all Economic and Financial Crimes is hardly in dispute. This position of the law was further reiterated by the supreme court in the case of NYAME vs. FEDERAL REPUBLIC OF NIGERIA (2010) 7 NWLR (pt.1193) 344 at 403. Also, contrary to the argument of the Appellant that criminal proceeding against him is a proceeding between the Federal Government and himself since same was initiated in the name of the Federal Republic of Nigeria. See NYAME vs. FEDERAL REPUBLIC OF NIGERIA (supra) at page 402.

Learned counsel further submitted that in the instant case, the information before the lower court was initiated by the A. G. FEDERATION AND THE ECONOMIC AND FINANCIAL CRIMES COMMISSION. Being so, the information could only have been initiated in the name of the Federal Republic of Nigeria and that fact alone cannot elevate the Criminal proceedings against the Appellant to a proceeding between the Federal Government and the Appellant in which case, only the Federal High Court would have jurisdiction. Therefore, the cases of FEDERAL REPUBLIC OF NIGERIA VS. EZE (1982) 3 NCLR 249 and Senate of the FEDERAL REPUBLIC OF NIGERIA VS. TONY MOMOH relied upon by the Appellant are in applicable in the instant appeal.

Learned counsel submitted further that, in the instant case, the offence being alleged against the Appellant before the Lower Court is simply stealing which is provided for under the Law enacted or deemed to have been enacted by the Lagos State High of Assembly. While it is conceded that control of capital issues is listed below as No. 12 in the Exclusive Legislative List and offences relating thereto may only be properly prosecuted at the Federal High Court, the offences of stealing is no doubt a residual matter which only the State House of Assembly can legislate upon and which can only be prosecuted at the High Court.

The Appellant issue No. 1 is, a challenge to the Constitutionality of the provision of Section 390 (7) of the Criminal Code Law Cap C17 Laws of Lagos State. See AKWULE & ORS. VS. THE QUEEN (1963) NSCC 157.
Learned counsel further submitted that, having regard to the information before the Lower Court the offence of stealing provided for under Section 390 is not a legislation on Control of Capital issues but a legislation prescribing an offence that may be committed by anybody including a bank worker or a stock broker. Therefore, it would not lie in the mouth of a bank worker, a stock broker or a staff of a company registered under CAMA found to have stolen the funds of a bank or company to argue that he cannot be prosecuted under a law enacted against stealing by a State House of Assembly. See GEORGE VS. FEDERAL REPUBLIC OF NIGERIA (2011) 10 NWLR (Pt 1254) 1 at 73.
Learned counsel further submitted that, under the investment and Securities Act, No 29, 2007 does not confer any Criminal jurisdiction on the Investment and securities Tribunal created under the Act. The tribunal only has jurisdiction to settle disputes that are Civil in nature by Section 304 of the Act 2007.

Learned counsel further, submitted that having regards to the provisions of the 18A, 2007, it is possible for investigation into the affairs of a company to reveal the commission of an offence under a law enacted by a State House of Assembly, which can be prosecuted by only the Attorney General of the State or any person or authority to whom the Attorney General may delegate his prosecutorial powers. The offence of stealing which investigation by the EFCC revealed in the instant case can be prosecuted by the Attorney General of Lagos State and since the Attorney General has delegated his prosecutorial powers to the Attorney General of the Federation and EFCC both can prosecute the Appellant for the offences charged. This Court is urged to resolve issue No. 1. In favour of the 1st Respondent.

The meat of issue No.1 is whether the High Court of Lagos State, had the requisite jurisdiction to try the Appellant for the offences of fraudulent conversion and stealing preferred against him. Notwithstanding, that the offences were allegedly committed in the course of Capital Market transactions.

This court in an unreported recent decision, in Appeal No.CA/B/179/2011, between MR. MARVIN OJIGHO VS. ENGR. EME MUKORO, delivered on the 20th of June, 2013, Per T. S. Yakubu, JCA, on jurisdiction stated as follows:

Unquestionably, jurisdiction is the Soul and Life line of an action in Court. It is the green light which authorizes the court to proceed and assume its powers/vires over the action and determine it. Therefore, where the crucial and fundamental question of jurisdiction is not resolved by the Court and it proceeds to determine an action before it, that may be tantamount to an exercise in futility and counterproductive, if at the end, an appellate court found that the trial Court lacked the jurisdiction to have heard and determined the said action. Hence, it is the firm opinion of this court and the apex court that as soon as the issue of jurisdiction is raised by parties or by the court suo motu, that issue must be the first duty of the court to be determined as a matter of priority. AJAYI vs. ADEBIYI (2012) 11 NWLR (Pt.1310) 137 at 181 & 202 (SC); GOLDMARK VS. IBAFON (2012) 3 SCNJ (Pt.11) 565 at 597; UTIH & ORS. vs. ONYIVWE & ORS. (1991) 1 SCNJ 25 at 49; FEDERAL AIRPORT AUTHORITY OF NIGERIA LTD. VS, SYLVESTER NWOYE (2012) 16 WRN 154 at 184 (CA); ADEYEMI vs. OPEYORI (1976) 9 – 10 SC 31 or (1976) 1 NMLR 149.

Learned counsel to the Appellant in his reply brief dated 7/10/11 and filed 10/10/11 stated the jurisdiction of the High Court of Lagos State to try cases between Federal Government of Nigeria and some other party. The authority of NYAME VS. FEDERAL REPUBLIC OF NIGERIA (2010) 7 NWLR (Pt.1193) 344 relied by the Respondent does not in any way whittle down authority of the decisions of the full court of the court of Appeal in both FEDERAT REPUBLIC OF NIGERIA VS. EZE AND SENATE OF THE FEDERAL REPUBLIC OF NIGERIA & ANOR VS. TONY MOMOH & ANR. (supra). These two decisions have clearly established that only the Federal High Court can entertain prosecutions in relation to matters contained on the Exclusive Legislative List. Also see Section 253 of the Criminal Justice Administration in High Courts and Magistrate Courts of Lagos state and for other connected purposes Law 2008.
The Court in determining whether it possesses the jurisdiction over an action initiated before 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 charges preferred against the Appellant. At page 2 of the Respondents brief dated and filed 30th September, 2011, the following was copied as the discovery of the investigators:

(a) That the Appellant and the 2nd – 4tn Respondents incorporated or caused to be incorporated for no genuine business purpose a number of companies, which were used as vehicles or conduits for Economic Crimes.

(b) That the Appellant was an Executive Director of Finbank Plc at the time material to the petition.

(c) That the Appellant was reckless and fraudulent in the performance of his duties as an Executive Director of the bank

(d) Between August 2006 and November 2007, just before the public offer of shares of Finbank Plc, the
Appellant in collaboration with the 2nd – 4th Respondents herein instructed Springboard Trust & Investment Limited to purchase Finbank Shares in the name of Front or Pseudo Companies Incorporated by them.

(e) The Appellant and the 2nd 4th Respondents illegally and fraudulently converted over N20 Billion (Twenty Billion Naira) of the Finbank funds to the use of Springboard Trust and Investment Limited and Pseudo Companies Incorporated by them.

(f) The Appellant signed a series of documents approving the transfer of funds into the account of Springboard Trust & Investment Limited.

Although the Appellant and the 2nd – 4th Respondent herein also being prosecuted at the Federal High Court Lagos, in respect of some offences that can be filed in that Court. The charge pending before the High Court of Lagos State relates to funds allegedly converted fraudulently under Counts 1 – 26 were funds that were allegedly stolen from Finbank Plc through the Vehicle of Springboard Trust & Investment Limited and the Pseudo or Front Companies and none of those transactions or funds is mentioned in the Amended charge now pending at the Federal High Court.
Before the issue of jurisdiction of the Lagos State High Court is determined in relation to the offences listed above, paragraph 3.07 of the Respondents brief of argument on page 8 is quite instructive. It is copied as follows:
In the instant case the offence being alleged against the Appellant before the Lower Court is simply stealing which is provided for under the law enacted or deemed to have been enacted by the Lagos State House of Assembly. While one concedes that Control of Capital issues is listed below as No. 12 in the Exclusive Legislative List and offences relating thereto may only be properly prosecuted at the Federal High Court the offence of stealing is no doubt a residual matter which only the state House of Assembly can legislate upon and which can only be prosecuted at the State High Court.

By the unequivocal admission of the Respondent above the Control of Capital issues is listed below as No. 12 in the Exclusive Legislative List, and offences relating thereto may only be properly prosecuted at the Federal High Court. This is a fact admitted which requires no further proof. The law is already trite that anything admitted need no further proof. See NIGERIAN BOTTLING COMPANY PLC VS. STEPHEN OBOH (2000) 9 WRN 114; HAUWA UBUDU VS. BULUMA ABDULKADIR (2001) 7 NWLR (PT.713) 669; N.I.D.B. VS. OLALOMI INDUSTRIES LTD. (2002) 28 WRN 66; MOHAMMED SANI ABACHA VS. STATE (2002) 9 MJSC 1; ATTORNEY GENERAL OF FEDERATION VS. A. G. ABIA STATE (2002) NSCQR 163; THE ATT. GENERAL OF LAGOS VS. DOSUMU (1989) 3 NWLR (PT.111) 522.

Now let us consider the offence of stealing under Section 383 Criminal Code Cap. C38, 2004. Section 383 (1) defines stealing as:
“A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen is said to steal that thing.”

Before the charge of stealing can be sustained there must therefore be:-
(a) A fraudulent taking of the thing which must be capable of being stolen or
(b) A fraudulent conversion of such thing to the use of the accused or the use of any other person, and in either case, there must be present one of the intents mentioned in Section 383 (2) of the Criminal Code.
S. R. v. NINEDAYS (1959) 4 FSC 792; ONIMISI UKANA (ALIAS JAGUDA) VS. COMMISSIONER OF POLICE, BENUE STATE (1995) 9 NWLR (PT.416) 705 at 722; TAIWO BUCKNOR SMART VS. THE STATE (1974) 11 SC 173; CLARK & ANOR. VS. THE STATE (1986) 4 NMLR (Pt.35) 381; BABALOM and ORS. VS. THE STATE (1989) 4 NWLR (PT.115) 264.

Also what must be proved by the prosecution for the offence of stealing are:
(a) A fraudulent taking or
(b) A fraudulent conversion of the thing said to have been stolen. On this. See: MICHEAL ALAKE & ANOR VS. THE STATE (1991) 7 NWLR (Pt.205) 567 at 593; EKUMA VS. COMMISSIONER OF POLICE (1963) 1 ALL NLR 285; THE QUEEN VS. NWANKWO (1962) 1 ALL NLR 64; R. V. WILLIAMS (1953) 37 Cr. App. R. 71; EZE VS. STATE (1992) 7 NWLR (Pt.251) 75; DR. OLU ONAGORUWA VS. THE STATE (1993) 7 NWLR (Pt.303) 49 at 91.
Another important ingredient of the offence of stealing is the Existence of thing stolen. A person can only be charged with stealing what is in existence. Therefore before a Court of law can convict an accused person for stealing, the prosecution must prove the existence of the thing allegedly stolen. See: MUMUNI vs. THE STATE (1975) 6 SC 79; DR. OLU ONAGORUWA vs. THE STATE (1993) 7 NWLR (Pt.303) 49 at pp 88 – 89. MUSTAPHA TIJANI VS. COMM. OF POLICE (1994) 3 NWLR (Pt.335) 692 at pp.703-794.

It is this, but important element of offence of stealing the existence of thing stolen, that can determine whether the High Court of Lagos State possesses the jurisdiction over the action initiated before it or not. In doing this, it becomes apposite, to juxtapose, the said Element of offence of stealing with the report of the investigators copied on page 2 of the Respondents brief of argument.
Paragraphs (d) (e) and (f) are quite instructive. For ease of reference, they are reproduced again hereunder:

(d) Between August 2006 and November 2007, just before the public offer of shares of Finbank Plc, the
Appellant in collaboration with the 2nd – 4th Respondents herein instructed Springboard Trust & Investment Limited to purchase Finbank Shares in the name of Front or Pseudo Companies Incorporated by them.

(e) The Appellant and the 2nd – 4th Respondents illegally and fraudulently converted over N20 Billion (Twenty Billion Naira) of the Finbank funds to the use of springboard Trust and Investment Limited and pseudo companies Incorporated by them.

(f) The Appellant signed a series of documents approving the transfer of funds into the account of Springboard Trust & Investment Limited.

From the above, what undisputedly is in existence is, the fraudulent conversion of the funds of Finbank Plc into the account of Springboard Trust & Investment Limited, with the instruction to the latter, to purchase the Finbank shares in the name of Front or Pseudo companies Incorporated by the Appellant and other Respondents. What is therefore in existence is, the fraudulent conversion of funds of the Bank as instructed, into shares. If the funds in question have turned into shares, which an issue in the Capital Market, can the High Court of Lagos state therefore invoke its jurisdiction on such matter, on a charge of stealing. Earlier on, we have stated in this judgment that, the Respondent had admitted in paragraph 3.07 of its brief of argument on page 8, that the control of Capital issues is listed below as No. 12 in the Exclusive Legislative List, and offences relating thereto may only be properly prosecuted at the Federal High Court, why will the prosecution then resort to another charge of stealing at the High Court of Lagos, when the existence of the thing said to have been stolen is turned under the Control of Capital Issue? Put it in another way, will there be any evidence at the High court of Lagos which is different from the evidence that will be before the Federal High court on the Existence of the thing stolen. No doubt the pith and substance of the Complaint of stealing as evidence by the conversion as instructed, into shares concerns a matter of capital issue which is item 12 on the Exclusive Legislative List. By Section 251 (i) (s) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) the Federal High Court, to the Exclusion of any other Court is conferred with the jurisdiction to entertain matters coming within the exclusive legislative list that is, matters over which only the National Assembly can legislate. Further under Section 7 (3) of the Federal High Court Act, 2004 Cap F12, the Court is also vested with jurisdiction over connected and ancillary matters. It is trite law that where the Constitution or the statute confer exclusive power to an organ or body, those not specifically mentioned are therefore excluded. The Supreme Court in the case of the ATTORNEY GENERAL OF BENDEL STATE & 2 ORS. VS. ADEYAN (1989) 9 SC 127 stated as follows:

‘It is now firmly established that in the construction of a statutory provision where a statute mentions specific things or persons the intention is that those not mentioned are not intended to be included.”
On the same point also see: EHUWA vs. ONDO STATE (2006) 11 – 12 S.C. 102.

It is already conceded by the Respondent that the Control of Capital issue which is listed below as No. 12 in the Exclusive Legislative List and offences relating thereto are only properly prosecuted at the Federal High Court. The issue before this Court is directly found as one of Control of Capital issues. The Federal High Court to the Exclusion of any other Court has jurisdiction to entertain those actions. Any further action on the same subject before any other court, amounts to subjecting the party to a double jeopardy. Section 36 Constitution of the Federal Republic of Nigeria, 1999 in clear terms double jeopardy.

Also the interpretation Act Cap. 123 laws of the Federation in of Nigeria 2004 interpreting and defining the scope of prosecutorial powers provides in its Section 25 as follows:

Where an act constitute an offence under two or more enactments or under an enactment and at common law, the alleged offender shall be liable to be prosecuted and on conviction punished under any one of the enactments or as the case may be, either under the enactment or at common law, but shall not be liable to be punished twice for same offence.

In the instant case the subject of this appeal, the law has made the prosecution of the offence or offences alleged against the Appellant Exclusive to the Federal High Court. Any other charge or charges in any other guise rerating to the same issue before any other court is void abinitio, and of no effect what so ever for lack of jurisdiction. The act of the Respondents is like putting something on nothing. No doubt it will not stay; it will collapse. See the famous dictum of Lord Denning MR. (of blessed memory) in the case of U.A.C. Vs. MCFOY (1961) 3 ALL ER 169 at 172 wherein he stated:

If an act is void, then, it is in law, a nullity. It is not only bad but incurably bad… And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to will stay there. It will collapse.

The charges placed at the High court of Lagos state by the Respondent against the Appellant are incurably bad for lack of jurisdiction, Issue No. 1. is resolved in favour of the Appellant and against the Respondent.
Having found for the Appellant that, the High court of Lagos State had no jurisdiction on those charges filed before it, the two remaining issues set out for determination become merely Academic or hypothetical question. The action at the Lagos High Court is found to be void for lack of jurisdiction. This court cannot indulge itself in the luxury of answering the remaining issues. The law is already settled that a suit is academic where it is merely theoretical and of no particular or utilitarian value to the Plaintiff even if judgment is given in his favour (as the case with the present appeal). A suit is Academic where it is not related to the practical situations of human nature. It is speculative if it is based on speculation, not supported by facts or very low facts but high in guesses. A suit is hypothetical if it is imaginary, not based on real facts. It looks like a mirage to deceive the Respondent, and, as to the reality of the cause of action, a semblance of the actuality of the cause of action or relief sought. See: PLATEAU STATE vs. A. G. FEDERATION (2006) 3 NWLR (Pt.973) 346 at 419; DIKE VS. OKORIE (1990) 5 NWLR (Pt.151) 418; OLUBODE VS. SALAMI (1985) 2 NWLR (Pt.7) 283; OJIEGBE Vs. OWARANYA (1962) 2 SC NLR 358; BANGBOYE VS. UNILORIN (1999) 10 NWLR (Pt.622) 290 at 330; EPEROKUN VS. UNIVERSITY OF LAGOS (1986) 4 NWLR (Pt.34) 162 at 179; N.I.C.O.N. VS. POWER IND. ENGR. CO. LTD. (1986) 1 NWLR (Pt.14) 1 at 22; AKEREDOLU V. AKINYEMI (1986) 2 NWLR (PT.25) 710; ADEYEMI V. OPEYORI (1976) 9 – 10 SC.

Having ascertained that embarking upon this academic exercise which is fast becoming true North frowned at by both the apex court and this Court, from the plethora of authorities cited above, the appropriate order for this Court to make with respect to the present appeal is, to allow it. This appeal is hereby allowed.

(1) The Ruling of the High Court of Lagos State, Ikeja Judicial Division (Criminal Law Division) Coram L. A. Okunnu in charge No.ID/115C/2011 delivered on the 24th day of May 2011, is hereby set aside by this Court for lack of jurisdiction.

(2) Consequently all charges filed before that court, with respect to the Appellant are hereby struck out.

(3) No Costs awarded.

 
CHINWE EUGENIA IYIZOBA, J.C.A.: I had the privilege of reading in advance the lead judgment just delivered by my learned brother SIDI DAUDA BAGE JCA, I agree with his reasons for allowing the appeal. I adopt them as mine. The Appellant was arraigned and charged before the Federal High court Lagos in charge no. FHC/L/383c/09, along with three others for various economic and financial crimes. The appellant with the three others were alleged to have used certain companies as fronts to purchase the shares of Finbank Plc. The transactions were said to have been carried out on their behalf by a company named Integrated Trust & Investment Limited. They were also accused of money laundering through the company Integrated Trust & investment Ltd. They were further alleged to have acted contrary to the provisions of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act by recklessly granting credit facilities to the alleged false companies and fronts and without adequate securities. While the case was pending at the Federal High Court, based on the same facts and transactions, charges of stealing funds were preferred against the Appellant and the others in the High court of Lagos in charge no ID/115C/2011. The question was whether the charge at the High court did not constitute abuse of court process in view of the pending charges in the Federal High court. The lower court answered the question in the negative prompting this appeal.

The reasoning of my learned brother in the lead judgment is that the investigation revealed fraudulent conversion of funds of Finbank Plc into the account of Springboard Trust & Investment Ltd with pseudo companies incorporated by the Appellant and other Respondents. Such facts do not disclose the ingredients of the offence of stealing. An important element is the existence of the thing stolen. In the circumstances it is difficult if not impossible to prove the thing stolen as what is in existence is the fraudulent conversion of funds of the bank as instructed into shares. The funds in question having turned into shares in the capital market is a matter strictly for the Federal High court. The High Court of Lagos State has no jurisdiction therein. The original suit in the Federal High court being pending, it does smack of abuse of court process to file another suit on the non existent charge of stealing in the High Court. This case is clearly distinguishable from Appeal No. CA/L/146/2012 Sebastian Adigwe v. Federal Republic of Nigeria (2013) 1 BFLR (BANKING AND FINANCE LAW REPORTS) 326. In that case, while charges proffered against the Appellant were pending before the Federal High court, the EFFC discovered that the Appellant had committed more crimes than he had been charged with. It was discovered that the new charges could not be preferred at the Federal High court due to lack of jurisdiction so the charges were filed at the High court of Lagos State. Pemu JCA in the lead judgment upheld the decision of the lower court that the new charges in the High were in order. In my contribution I had observed thus:

“The Lower Court is right that the offences stated in the information before the lower court are different from the earlier charges preferred against the appellant before the Federal High Court. The Federal High court has no jurisdiction to entertain the charges preferred against the appellant in the High Court and the High Court has no jurisdiction to entertain the charges preferred against the appellant in the Federal High Court. All the offences cannot therefore be brought in one court…”

The situation here is quite different. The facts of the transaction do not in fact support the charge of stealing preferred against the Appellant in the High Court.

I agree that the appeal has merit. I also allow it. I abide by the consequential orders in the lead judgment including the order as to costs.

 
OSEJI, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother Sidi Dauda Bage, JCA.

I agree with the reasoning and conclusion reached therein and have nothing extra to add.

I too allow the appeal and also abide by the consequential orders made in the lead judgment.

Appearances

Boma Ozobia (Mrs.) E. O. Wingate For Appellant

A. Adeniyi with T. Kuteyi for the 1st Respondent
N. K. Oragwu with E. Majemota for the 2nd Respondent
O. S. Sowemimo, SAN with Miss R. Coker for the 3rd Respondent For Respondent