In The Court of Appeal of Nigeria
On Friday, the 2nd day of February, 2018
Before Their Lordships
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
SENATOR AYO ADESEUN-Appellant
FEDERAL REPUBLIC OF NIGERIA-Respondent
CHINWE EUGENIA IYIZOBA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the Ruling of Federal High Court No 1 Ibadan in Charge No. FHC/IB/26C/2017 delivered on the 9th day of May 2017 Coram Ayo-Emmanuel J. transferring a criminal charge brought against the Appellant and 2 others to Court 2 where the Appellant had a pending application for injunction restraining the filing of charges against the Appellant.
THE FACTS: During the 2015 general elections, the Appellant and two others were among the leaders of People’s Democratic Party (PDP) in Oyo State. They received the sum of N650, 000, 000.00 from a certain source for the 2015 election expenses. The Respondent claimed that investigation revealed that the N650, 000, 000.00 was proceeds of gratification received by the Former Minister of Petroleum Resources, Mrs Diezani Alison-Madueke from various Oil Marketers. The Respondent through EFCC arrested the Appellant and the two others and insisted that they must refund the money to the Respondent. The Appellant refused to refund the money claiming the funds came from their party and had been lawfully expended on the elections. The Appellant claimed he was released from custody of EFCC after 40 days detention but that EFCC continued to harass and intimidate him and other leaders of the party, threatening further arrests and prosecution. They consequently instituted Suit No FHC/IB/CS/15/2017: PEOPLES DEMOCRATIC PARTY & 905 ORS V (1) ATTORNEY GENERAL OF THE FEDERATION, (2) EFCC, (3) IBRAHIM MAGU (AG. EFCC CHAIRMAN), and (4) MR. ROTIMI OYEDEPO claiming inter alia the following reliefs:
i. A DECLARATION that the order purportedly made by the President and Commander in Chief of the Armed Forces of the Federal Republic of Nigeria to the 2nd Defendant to use all means to force the members of the Plaintiff, a political party to pay back to the Federal Government all monies used for the 2015 presidential Election, is undemocratic, unconstitutional, an abuse of Presidential and official powers and therefore null, void and of no effect.
ii. A DECLARATION that the continuous harassment, intimidation, prosecution or threat of prosecution of the 1st Plaintiff’s members across the country and in particular its members in Oyo State comprising 2nd – 906 Plaintiffs over the presidential campaign funds given to them by the 1st Plaintiff without same treatment meted on members of the All Progressives Congress is discriminatory, and a breach of their fundamental human rights.
iii. A DECARATION that the demand and threat by the 2nd – 4th Defendants to refund all monies expended by the Plaintiffs in respect of the 2015 General Election and the threat of arrest and prosecution unless they leave the 1st Plaintiff and join the All Progressives Congress, is undemocratic, unconstitutional and an attempt to return Nigeria into a dictatorship.
iv. A DECLARATION that the receipt of money from Jonathan Campaign Organization which sum as conceded by the 2nd Defendant is said to have been donated by private oil companies and individuals does not constitute a criminal offence under any law in Nigeria for which the Plaintiffs can be arrested or prosecuted.
v. A DECLARATION that the demand by the Defendants that Plaintiffs should refund the sum of money received from Goodluck Jonathan Presidential Campaign Organization and spent for the purpose of the 2015 Presidential and National Assembly Election in all 33 Local Governments, 350 Wards and 5,620 Units of Oyo State is ultra vires.
vi. PERPETUAL INJUNCTION restraining the Defendants by themselves, their servants, agents or any person howsoever called from inviting, arresting, detaining or charging the Plaintiffs in a Court of law in respect of monies received from the People’s Democratic Party and Goodluck Jonathan Campaign Organization and other individual donors for the purpose of the 2015 Presidential Elections.
The Plaintiffs further filed a Motion on Notice dated 13th February 2017 seeking inter alia the following:
AN ORDER OF INTERLOCUTORY INJUNCTION restraining the Defendants by themselves, their servants, agents or any person howsoever called from inviting, arresting, detaining or charging the Plaintiffs in a Court of law in respect of monies received from Goodluck Jonathan Campaign Organization and other individual donors for the purpose of the 2015 Presidential Election pending the determination of the substantive suit.
While the above suit and motion for interlocutory injunction were pending in Federal High Court 2, the Respondent on the 20th
day of March, 2017 preferred a criminal charge, Charge No FHC/IB/26C/2017 against the Appellant and 2 others in Court 1 before Ayo- Emmanuel J. (the lower Court). The Respondent???s case as set out in their brief is as follows:
My Lords, sometime in 2015, the Respondent received an intelligence report that the Appellant together with the duo of Oloye Jumoke Akinjide and Mr. Yinka Taiwo who at that time was the chairman People Democratic Party on the eve of Presidential Election received and possessed the sum of N650, 000,000.00 being proceeds of gratification received by the Former Minister of Petroleum Resources, Mrs. Diezani Alison-Madueke from various Oil Marketers.
The said intelligence was received, analysed and investigated whereupon it was discovered that the Appellant and his cronies did receive the sum of N650, 000,000.00, being proceeds of gratification received by Mrs. Diezani Alison Madueke from oil marketers. It was also discovered by the Respondent that the Appellant and others did not only retain the funds but also made various cash payments in excess of amount authorized by law without going through a financial institution. (See pages 32-38 and pages 144-151 of records of appeal for the facts leading to the filing of the charge)
My Lords, upon the conclusion of the investigation by the Economic and Financial Crimes Commission, the Respondent by an amended charge filed on the 20th day of March, 2017 preferred a criminal charge against the Appellant wherein it was alleged that the Appellant conspired with Oloye Jumoke Akinjide and Chief Olarenwaju Otiti to take possession of the sum of N650,000,000.00 which they reasonably ought to have known formed part of the proceeds of unlawful act contrary to Section 18 (a) and punishable under Section 15 (3) & (4) of the Money Laundering (Prohibition) (Amendment) Act,2012.
It was also alleged that the Appellant directly took possession of the N650,000,000.00 which he reasonably ought to have known formed part of proceeds of unlawful act contrary to Section 15 (2) (d) Money Laundering (Prohibition) (Amendment) Act,2012.
My Lords, another category of offences alleged against the Appellant was conspiracy to make cash payment in excess of amount authorized by law and the substantive offence of making in excess of amount authorized by law contrary to Section 1 (a), 16 (d) of the Money Laundering (Prohibition) (Amendment) Act, 2012 and punishable under Section 16 (2) (b) of the same Act.
The Appellant claimed that the Lower Court neither issued nor served him any hearing notice before commencing the proceedings as required by the Administration of Criminal Justice Act. The Appellant consequently filed two Motions in the lower Court seeking an Order to strike out the criminal charge on the ground that there was no service of hearing notice and that the charge was an abuse of the Court process; and an Order dispensing with the physical appearance of the 2nd Defendant for the purpose of arraignment pending the determination of the Motion praying for the striking out of the Charge. Counter affidavits were filed by the Respondent.
The learned Judge of Federal High Court No 2 where the civil matter was pending on being informed of the filing of the charge despite the pendency of the suit and the motion seeking to restrain the Respondent, on 28/4/17 made an order restraining the Defendants from taking any further steps that would prejudice the Motion for injunction. Ayo – Emmanuel J of Court No 1, the lower Court on being informed of the said order of High Court No 2 and after arguments back and forth on issues relating to the motions filed before him ruled thus:
Having considered the various submissions of counsel and more particularly as it relates to the interim injunctive order granted by my learned brother dated 28th day of April, 2017, this Court cannot pretend not to know the magnitude and weight of the said order neither can the Court cover its eye towards it. By the decision of A.G Anambra State vs. UBA & Ors (2005)15 NWLR (Pt 947) 44, this Court is bound to take cognizance of the said order. I cannot be seen to act as an appellate Court over the decision of a Court of concurrent jurisdiction.
In order to forestall an instance where the two Courts will be acting at variance and possibly making conflicting orders, it will be in the interest of justice and wisdom to have both the criminal and civil suits tried and determined by the same Court. Consequently, this suit is hereby transferred to Court two Coram, Hon. Justice J.O Abdulmalik for trial and determination. Fresh hearing notice shall be issued and served on all the parties.
Dissatisfied with the Ruling; the Appellant appealed by a Notice of appeal which was subsequently amended. From the four grounds of appeal in the Amended Notice of appeal, the Appellant formulated the following four issues for determination:
i. Whether the learned Trial Judge could exercise his discretion and make an order that was not prayed for and when no argument was called for and none given. GROUND 1.
ii. Whether the learned Court has the jurisdiction to make an order that has the effect of deciding an application that has not been heard. GROUND 2.
iii. Whether the learned trial Court has the jurisdiction to direct another Court of co-ordinate jurisdiction to hear and determine a matter in which there is an objection as to competence. GROUND 3.
iv. Whether the whole proceedings is not a nullity in the absence of service of the Charge and notice of trial on the Appellant. GROUND 4.
Learned counsel for the Respondent in his brief of argument formulated a sole issue for determination as follows:
Whether having regard to the facts and circumstances of this case, it can be said that the learned trial judge lacks the jurisdiction to make the order appealed against.
ARGUMENTS OF COUNSEL
APPELLANTS ARGUMENTS: Learned counsel for the Appellants on his issues i and ii submitted that the learned trial judge ignored the pending application challenging its jurisdiction to entertain the Charge in respect of which a Counter Affidavit and Written Address had been filed calling for a Further Affidavit and Reply Address from the applicant and went ahead to transfer the case when none of the parties prayed for the transfer of the criminal charge. Counsel submitted that the order had the effect of stifling the Appellant’s application. Counsel further submitted that the lower Court ignored the issue of non-service of Criminal Summons as required by Section 382(1) (2) (4) and (6) of the Administration of Criminal Justice Act 2015. He argued that the transfer of the charge to Court Two coram Hon. Justice J.O.Abdulmalik for trial and determination. Fresh hearing notice shall be issued and served on all the parties was prejudicial to the Appellant’s case because if there was no service of the initial charge, thereby rendering the charge and anything based thereon null and void, how could there be a further hearing notice? Counsel argued that the order was aimed at curing the original defect in service which went to the jurisdiction of the Court to entertain the charge by making the order of transfer.
Learned counsel submitted that the Appellant had in the lower Court raised the issue that the Charge was an abuse of Court’s process in that there was pending before another Court of coordinate jurisdiction an action seeking to declare that the Plaintiffs including the Appellant herein committed no crime in relation to the campaign funds spent on the 2015 General Elections and that the parties in this charge and the civil suit are the same. The criminal Charge is claiming that they have committed an offence over the said campaign funds while the civil suit is claiming that they have committed no offence. Counsel argued that if the application succeeded, there would be no trial at all as the prayer in the application was to strike out the criminal charge. Counsel argued that by ordering the transfer of the suit to Court Two Coram Hon.
Justice J.O. Abdulmalik for trial and determination the learned Trial Judge had determined the application when the application has not been moved. Counsel based his contention on the fact that the order is to hear and determine the suit whereas the application is that the suit should not be heard at all. Learned counsel saw this as a serious breach of the Appellant’s right to fair hearing, and argued that it rendered the proceedings a nullity.
On issue iii, learned counsel submitted that the order by the Judge of Court 1 transferring the suit to Court 2, a Court of coordinate jurisdiction for trial and determination and for fresh hearing notice to be issued amounted to usurpation of the powers of the presiding judge in Court 2 and violated Section 382 of ACJA.
On issue iv, learned counsel submitted that the ACJA provided a step by step procedure beginning from investigation, to filing of Charge, to bringing an offender before the Court, to application for bail, to trial and to judgment. He examined the relevant provisions of Section 382 of ACJA and submitted that the lower Court violated all the provisions and more importantly that there was no
service on the Appellant. He contended that the Court could not therefore assume jurisdiction to transfer the charge to another Court and that the entire proceeding was a nullity.
Learned counsel urged us to set aside the order transferring the suit to another Court for trial and determination and to dismiss the suit or in the alternative to send the case back to the lower Court Coram: Ayo-Emmanuel J or any other Court except Hon. Justice J.O. Abdulmalik for the hearing and determination of the Appellant’s preliminary objection.
Learned counsel for the Respondent on his sole issue submitted that jurisdiction is a threshold issue and goes to the competence of the Court to hear and determine a suit. He opined that where a Court does not have jurisdiction to hear a matter, the entire proceedings no matter how well conducted and decided would amount to a nullity. Counsel submitted relying on Section 22 of the Federal High Court Act that the Court below had the requisite jurisdiction to suo motu make an order of transfer of a cause or matter at any stage of the proceedings to another Court. Counsel quoted the provisions of the section and a number of decided authorities to conclude that a cumulative reading of Section 22(1), (2), (3) and (4) of the Act show that a Federal High Court Judge, may at any time or at any stage of the proceedings in any cause or matter before final judgment, either with or without any application from any of the parties thereto, transfer such cause or matter before him to any other judge of the Court; that by Subsection (2) of Section 22, no cause or matter shall be struck out by the Court merely on the ground that such cause or matter was taken in the Court instead of the High Court of a State or of the Federal Capital Territory Abuja, in which it ought to have been brought and by Subsection (3), notwithstanding anything to the contrary in any law, no cause or matter shall be struck out by the High Court of a State or of the Federal Capital Territory, Abuja on the ground that such cause or matter was taken in the High Court instead of the Court, where he may also cause such transfer to the appropriate Judicial Division of the Court in accordance with the rules of Court. BySubsection (4) thereof, every order of transfer made pursuant to Subsection (2) or (3) of this section shall operate as a stay of proceedings before the Court before which such proceedings are brought or instituted and shall not be subject to appeal. Counsel submitted that on the above premise, the trial Court had the requisite power and jurisdiction to suo motu make an order of transfer of charge No FHC/IB/26C/2017 to Hon. Justice J.O Abdulmalik of the Federal High Court.
Learned counsel submitted that the contention of the Appellant that he was not served notice of the hearing when he was adequately represented in Court was a clear case of paying undue regard to technicalities when it had long been decided by a plethora of authorities that the Courts are not workshops of technical justice and must on the contrary do substantial justice. He urged us to dismiss the appeal as lacking in merit.
Learned counsel submitted that the gravamen of the Respondent’s argument is that the learned Trial judge had jurisdiction under Section 22 of the Federal High Court Act to transfer a matter before him to another judge of the same Court. Counsel submitted that none of the grounds of appeal challenged the power of the trial Judge under Section 22 of the Federal High Court Act. He argued that the submissions of learned counsel did not address the issues raised in the Appellant???s brief.
Without much ado, it is my humble opinion that Section 22 of the Federal High Court Act has no relevance here. Section 22 of the Federal High Court Act provides:
“(1) A Judge of the Court may at any time or at any stage of the proceedings in any cause or matter before final judgment, either with or without application from any of the parties thereto, transfer such cause or matter before him to any other Judge of the Court.
(2) No cause or matter shall be struck out by the Court merely on the ground that such cause or matter was taken in the Court instead of the High Court of a State or of the Federal Capital Territory, Abuja in which it ought to have been brought, and the Judge of the Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate High Court of a State or of the Federal Capital Territory, Abuja in accordance with Rules of Court to be made under
Section 44 of this Act.
(3) Notwithstanding anything to the contrary in any law, no cause or matter shall be struck out by the High Court of a State or of the Federal Capital Territory, Abuja on the ground that such cause or matter was taken in the High Court instead of the Court, and the Judge before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate Judicial Division of the Court in accordance with such rules of Court as may be in force in that High Court or made under any enactment or law empowering the making of rules of Court generally which enactment or law shall by virtue of this subsection be deemed also to include power to make rules of Court for the purposes of this subsection.
(4) Every order of transfer made pursuant to Subsection (2) or (3) of this Section shall operate as a stay of proceedings before the Court before which such proceedings are brought or instituted and shall not be subject to appeal.
(5) Where the Court to which any cause or matter has been transferred pursuant to Subsection (2) or (3) of this section is of opinion that the cause or matter ought in law to be dealt with by the Court which transferred the cause or matter, the Judge presiding in the first mentioned Court shall after hearing counsel on behalf of the parties state a case on a point of law for the opinion of the Court of Appeal.
(6) Where any case on a point of law is stated for the opinion of the Court of Appeal, the Court of Appeal shall, in accordance with rules applicable in that Court, give its decision upon the case and the Court which stated the case shall dispose of the cause or matter accordingly.
The above provisions have been the subject of many decisions of this and the apex Courts as quoted in the briefs. Learned counsel for the Appellant is right in his arguments in the Reply brief that Section 22 of the FHC Act was made to ameliorate the problem encountered by litigants who institute actions before the Federal High Court when the action ought to have been filed at the State High Court and vice versa. Secondly, where the Federal High Court has jurisdiction but the matter was brought in a division of the Court outside of where the subject matter arose the judge may under Section 22 of the Federal High Court Act transfer the case to the Federal High Court in which the cause of action arose. Previously, the Courts in such situations struck out such suits. The aim of the new provision is to save such suits from being struck out. None of the above scenarios exist in the present situation. The section is consequently inapplicable.
It is trite that jurisdiction is a threshold matter as it goes to the competence of the Court to hear and determine the suit. See: BRONIK MOTORS LTD AND ANOTHER V WEMA BANK LTD. 1983 1 SCNLR P.296; OKOYA V. SANTILLI1990 2 NWLR PT.131 P. 172. In the case of MADUKOLU V NKEMDILIM 1962 1 ANLR PT.1 P.587 the Supreme Court held that a Court is competent to exercise jurisdiction where the Court is properly constituted as regards numbers and qualification of its members; the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents it from exercising jurisdiction and the case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.
The contention of the Appellant is that the learned trial judge assumed jurisdiction to transfer the case as he did when the condition precedent to his assumption of jurisdiction had not been fulfilled in that no charge or notice of trial had been served on the Appellant as required by law; and that there was an application pending seeking to dismiss the Charge as an abuse of Court’s process. Appellant’s contention further is that the learned trial judge suo motu transferred the charge without any application by any of the parties and in a manner that pre-determined all the pending applications.
A careful reading of the proceedings of the lower Court as appeared in the Record of appeal especially the proceedings of Tuesday 9th day of May 2017 at pages 163-168 of the printed record show that the facts are not quite as presented by the Appellant in his brief. The lower Court had pursuant to Section 382 (5) of the Administration of Criminal Justice Act ordered that the Notice of trial and Information be served on the three defendants through their legal practitioners. Learned counsel for the 1st and 3rd Defendants admitted that they were served. Both counsel said they had been served and that there is no issue about that (1st Defendant page 164 first
three lines. 3rd Defendant Page 166 3rd line.) Counsel for the 2nd Defendant who is the Appellant herein at the last three lines of page 164 stated that he had not been served with the summons. He stated that the learned trial judge had said the application challenging jurisdiction would be heard first. One wonders why if he had not been served with the summons, he would be applying for an Order dispensing with his physical appearance for the purpose of arraignment. Learned counsel for the Appellant further observed:
My learned brother appearing in Court this morning was in Court on that day when that order was made. (Order by Court 2 on 28/4/17 restraining the Defendants in Suit no FHC/1B/CS/15/2017 from taking any further steps that would prejudice the Motion for injunction). This is not a simple matter of civil matter and criminal matter going on at the same time but that no matter should go on since that case is going on. If my learned friend this morning is asking for an arraignment and asking your lordship to give a penal order against the 2nd Defendant who is a party in that suit, he is the one disrespecting the order of your learned brother. What I expected that he should do this morning is to come to Court and ask for an adjournment based on the order of your learned brother.
I align myself with the learned silk that we should stay proceedings till the ruling of your learned brother. I also need to file my response to the reply of the prosecution.
It is my view that non service of the summons on the Appellant was not made such an issue at the lower Court as would have deprived the court of jurisdiction to take any step in the matter. The Appellant who claimed not to have been served was duly represented by counsel. The concern of the Appellant as clearly made known by his Counsel above is that the criminal charge should not proceed in view of the order of Court 2. Claim of absence of fair hearing does not therefore arise at all. There were sufficient submissions by all the Counsel especially the Appellant’s Counsel as set out above to enable the learned trial Judge come to the conclusion that the proper step to take in the circumstances was to transfer the charge to Court 2. He could not be seen to be acting as an appellate Court over the decision of his brother judge of coordinate jurisdiction and also to avoid the possibility of their making conflicting orders. It could not consequently be said that the learned trial judge raised the issue suo motu and decided without hearing the parties. Considering the issues at stake in Court 2, I am not surprised the lower Court opted for the transfer to Court 2. He could not act as an Appeal Court over the decision of his brother Judge of coordinate jurisdiction and they should not be seen to be making conflicting orders. The learned trial Judge said it all and the Appellant should have read between the lines. Although the Appellant and his co-Applicants were asking for stay of proceedings; having heard their submissions, the learned trial judge rightly in my view decided that it was better to transfer the charge to Court 2 where all the issues can be dealt with. I am of the view that the transfer of the suit to Court 2 Coram, Hon. Justice J.O Abdulmalik for trial and determination does not preclude the Judge from hearing the pending applications if counsel desired to continue with the applications. Common sense however dictates that since there is already pending in that Court an order restraining the Defendants from taking any further steps that would prejudice the Motion for injunction, that the motion for injunction would be heard and determined one way or the other before any further steps can be taken on the criminal charge. However, Hon. Justice J.O Abdulmalik of Court 2 is master in his own Court. From the Record of Appeal, summons had already been ordered by the lower Court to be served on Counsel for the parties. Two of the Counsel admitted service. It follows that what ought to be ordered is fresh hearing notice on the parties. However, this does not preclude any party who claims not to have been served at all from raising the issue before Hon. Justice Abdulmalik.
I am at a loss as to why the Appellant found it necessary to appeal the Ruling of the lower Court to transfer the criminal charge to Court 2. If truly his reservation was the transfer for trial and determination and the order for fresh hearing notice; he would have confined his complaint to that aspect of the order. On the contrary, he is urging us to set aside the order transferring the suit and to dismiss the suit or in the alternative send it back to the
lower court Coram: N. Ayo Emmanuel J or any other Court except Hon. Justice J.O. Abdulmalik for the hearing and determination of the Appellant’s preliminary objection. This, in my humble view shows lack of good faith and the intention to merely delay the hearing of the matters. Such conduct on the part of Counsel must be deprecated as it constitutes a clog in the speedy and due administration of justice to the detriment of the reputation of the Courts and the Judiciary. I am of the firm view that this appeal has no merit whatsoever. It is hereby dismissed.
HARUNA SIMON TSAMMANI, J.C.A.:I read in advance the judgment delivered by my learned brother, C. E. Iyizoba, JCA.
The learned trial Judge transferred the case hitherto pending before him in the exercise of his discretion. Certainly, the learned trial Judge did so in the exercise of the inherent power granted all Courts in the exercise of adjudicatory functions by virtue of Section 6(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). So long as the Court exercised that inherent power judicially and judiciously, the Appellate Court will not interfere. In the instant case, the decision of the learned trial Judge to transfer the case to his learned brother of the same jurisdiction, was for good reason. It was meant to avoid conflict in the decisions that may come out of the two Courts.
It is for the above reason that I agreed that this appeal has no merit. It is hereby dismissed by me.
NONYEREM OKORONKWO, J.C.A.: I agree with the lead Judgment in this appeal by my lord Chinwe Eugenia Iyizoba JCA dismissing this appeal as being misconceived.
I will proceed to add that Section 22 of the Federal High Court Act does not contain any factual conditions that must be met before a Judge will feel obliged to transfer a case before him to another Judge of the same Court. Numerous factual scenario may arise to justify such a cause of action including personal reasons.
Transfer of cases generally, is the preserve of the trial judge or administratively the function of the Chief Judge. The trial Court has given very good reasons why he could not proceed further with the case which reasons are unassailable. One wonders why the appellants are against a particular Judge. Perhaps appellant should apply to the Chief Judge of the Federal High Court who could administratively make such transfer.
MICHAEL F. LANA, ESQ WITH A. A. ISETIE, ESQ AND F. O. ODEYEMI (MISS)-For Appellant
IDRIS A. MOHAMMED, ESQ-For Respondent