KOMOLAFE v. FEDERAL REPUBLIC OF NIGERIA (2018)

In The Supreme Court of Nigeria

On Friday, the 18th day of May, 2018

SC.817/2015

Before Their Lordships

IBRAHIM TANKO MUHAMMAD  Justice of The Supreme Court of Nigeria
OLUKAYODE ARIWOOLA  Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS  Justice of The Supreme Court of Nigeria
AMINA ADAMU AUGIE  Justice of The Supreme Court of Nigeria
PAUL ADAMU GALINJE  Justice of The Supreme Court of Nigeria


Between

ADEKANYE KOMOLAFE-Appellant

AND

FEDERAL REPUBLIC OF NIGERIA-Respondent

…………………….A…………………….

PAUL ADAMU GALINJE, J.S.C. (Delivering the Leading Judgment): The Appellant herein and one Mrs. Ruth Adehwe Aweto were bursar and provost respectively of Federal Cooperative College, Ibadan. They were arraigned before the Oyo State High Court, Ibadan charged with offences bordering on contravention of Section 17(1)(c) of the Corrupt Practices and Other Related Offences Act, 2000. During the trial the prosecution called five witnesses and tendered several documents in evidence. The Appellant and his co-accused testified in their defence and called additional four witnesses.
At the end of the trial and in a reserved and considered judgment, the Appellant and his co-accused were each convicted under counts 5, 6, 7 and 8 and sentenced to one year imprisonment on each count. The sentences were ordered to run concurrently.
The Appellant was dissatisfied with the judgment of the trial Court. Being aggrieved, he appealed to the Court of Appeal, Ibadan, where his appeal was dismissed. He has now brought this appeal. His Notice of Appeal dated 28th November, 2015 and filed on the 29th November, 2017 contains four grounds of appeal. Parties filed and exchanged briefs of argument. The Appellant’s brief of argument, settled by Oluwasina Ogungbade Esq of counsel to the appellant was filed on the 19th December, 2017. Learned counsel submitted two issues for determination of this appeal. These two issue are hereunder reproduced as follows:-
1. Whether the High Court of Oyo State had the jurisdiction to try the Appellant for the offences charged particular regard being had to the combined effects of the provisions of Sections 251(1)(p) and 251(3) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended)?
2. Whether in the absence of proof of a corrupt intent in the preparation of the budget proposals, the prosecution successfully discharged the burden of proof required for the conviction of the Appellant under the provisions of Section 17(1)(c) of the Corrupt Practices and Other Related Offences Act 2000.

The Respondent’s brief of argument settled by Enosa Omoghibo Esq of counsel was filed on the 17th January, 2018. Learned counsel formulated two issues for determination of this appeal. They read thus:-
(a) Whether the High Court of Oyo State had the jurisdiction to try the appellant for the offences charged under the Corrupt Practices and Other Related Offences Act 2000 having regard to the provisions of Sections 251 (1)(p) and 251 (3) of the Constitution of the Federal Republic of Nigeria (as amended).
(b) Whether the prosecution had not proved corrupt intent as an ingredient of the offence created under the provisions of Section 17(1)(c) of the Corrupt Practices and Other Related Offences Act 2000 to ground a conviction.

Appellant filed a reply brief on 18th January, 2018. Before I delve into the submissions of learned counsel, I wish to set out in brief the facts that gave rise to this appeal, which are in my view simple and straight forward. The Appellant herein was the bursar of the Federal Cooperative College Ibadan. Mrs Ruth Adehwe Aweto was the provost of the same college. The two of them prepared and submitted nominal rolls and Budget proposals for the staff of the college for 2006, wherewith they presented 41 casual staff as permanent staff. As a result of such presentation to the Federal Government, the sum of N7,041,861.15 was released every year as salaries and emoluments for the 41 casual staff, whereas the actual amount that was paid to the casual staff was N3,690,000.00 only.
In arguing the first issue, learned counsel for the Appellant submitted that Section 251 (3) of the 1999 Constitution of the Federal Republic of Nigeria confers criminal jurisdiction on the Federal High Court in respect of matters over which it has exclusive jurisdiction under Section 251 (1) of the same Constitution. According to the learned counsel, one of the areas over which the Federal High Court has exclusive jurisdiction are matters involving the administration, management and control of the Federal Government and its agencies. It is the view of the learned counsel that the conduct forming the basis of the charge against the Appellant was in the performance of his duty as the bursar of the Federal Cooperative College, Ibadan, an agency of the Federal Government, as such only the Federal High Court could validly try the offences alleged to have been committed as reflected on the charge.
Section 251 (1)(a) and (p) of the 1999 Constitution provides as follows:-
251 (i) Notwithstanding anything to the contrary

…………………….B…………………….

contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters –
(a) Relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party;
(p) The administration or the management and control of the Federal Government or any or its agencies.”

It is true that the Federal Cooperative College, Ibadan is an agency of the Federal Government. The exclusive jurisdiction donated to the Federal High Court is in respect of civil causes and matters relating to those items set out in Subsection (1)(a-s) of Section 251 of the Constitution. Section 251(3) of the same Constitution is very clear. It provides as follows:-
251 (3) The Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is conferred by Subsection (1) of this section.
The word Exclusive is clearly absent in Section 251(3) of the 1999 Constitution and the word also” connotes “in addition, as well” or too. I therefore agree with the learned counsel for the Respondent where he stated in argument that if the framers of the Constitution had intended that the Federal High Court should have exclusive jurisdiction in criminal matters relating to the revenue of the Federal Government of Nigeria, they would have said so in clear words.
In the case of Attorney General of Ondo State vs The Attorney General of the Federation, the Attorney General of Ondo State, by an originating summons filed at the Supreme Court, asked for among other reliefs the following:-
1. A determination of the question whether or not the Attorney-General of the Federation or any person authorized by him can lawfully initiate legal proceedings in any Court of law in Ondo State in respect of any of the criminal offences created by any of the provisions of the Corrupt Practices and Other Related Offences Act 2000.
2. A declaration that the Corrupt Practices and Other Related Offences Act 2000 is not inforce as law in Ondo State.
3. A determination that it is not lawful for the Attorney-General of the Federation or any person authorized by him to initiated legal proceedings in any Court of law in Ondo State in respect of the criminal offences purported to be created by the provisions of the Corrupt Practices and Other Related Offence Act, 2000.

The full Court of this Court after hearing the parties came to the conclusion that, by virtue of Section 174 (1) and 286 (1)(b) of the 1999 Constitution, the Attorney-General of the Federation or any person authorized by the Independent Corrupt Practices Commission (ICPC) can lawfully initiate or authorise the initiation of criminal proceedings in any Court other than a Court martial in any State of the Federation in respect of offences created by the Corrupt Practices and Other Related Offences Act 2000. At page 419 paragraphs A -B, their Lordships had this to say:-
“The Attorney-General of the Federation derives his powers under Section 174 of the Constitution as an agency of the Federal Government. The law is well established that the Court cannot control the manner he exercises his powers so conferred….nor can he be prevented from exercising his functions on the grounds that his jurisdiction does not extend to any particular state in Nigeria, Section 174 of the Constitution does not impose any such limitation.” See the State vs Ilorin(1983) 1 SCNLR 94.
Section 6 of the Corrupt Practices and Other Related Offences says among other things that it shall be the duty of the ICPC to prosecute offenders. However, Section 26 (2) of the same Act provides inter alia that every prosecution for an offence under the Act shall be deemed to be initiated by the Attorney-General of the Federation. It follows therefore that any criminal case initiated by the ICPC, is infact initiated by the Attorney-General of the Federation.
It will appear that the learned counsel for the Appellant has either failed to understand the decision in Attorney-General Ondo State vs Attorney-General Federation (supra) or he has deliberately brought this issue to test the patience of this Court. If learned counsel wants the Court to depart from its decision, he has not properly placed his

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wishes before this Court. For this Court has clearly stated that the State High Courts and the FCT High Court which are designated by the Chief Judges under Section 61 (3) of the Act for hearing of cases bordering on offences created by the Corrupt Practices and Other Related Offences Act, have the requisite jurisdiction to hear such cases. In the instant case the High Court of Oyo State has jurisdiction to hear this case. The Lower Court was therefore right to so hold. Issue one is therefore resolved against the Appellant. The round of appeal upon which this issue was formulated is hereby dismissed.
The 2nd issue for determination, is whether in the absence of proof of a corrupt intent in the preparation of the budget proposals, the prosecution successfully discharged the burden of proof required for the conviction of the Appellant under the provisions of Section 17(1)(c) of the Corrupt Practices And other Related Offences Act 2000? The Appellant was accused of having made false representation in the budgetary proposals of the Federal Cooperative College, Ibadan for the year 2006 with the intention that her principal, the Federal Government of Nigeria would act on those false representations. Specifically the Appellant was accused of presenting 41 casual staff of the Federal Cooperative College, Ibadan as permanent staff as a result of which the Federal Government released the sum of N7,041,816.15 as the benefits and emoluments of the said staff, when in reality they were as casual staff entitled to N3,690,000.00 only.
The Appellant’s defences as reflected in the Appellant’s brief of argument are reproduced hereunder as follows:-
(i) That the 41 casual staff had already been interviewed by the Respondent preparatory to their conversion to permanent staff and that the decision to include them as permanent staff was based upon the recommendation of the interview panel.
(ii) That prior to her assumption of office as the provost of the college, the said 41 casual staff had already been represented via Exhibit 83 (the handover note of her predecessor in office) to the Respondent as permanent staff.
(iii) That the proposed conversion was delayed owing to policy of the government on employment.
(iv) There was a short fall of staff salary of over N9,000.00 million in 2004.

(v) That the difference between the amount released by the Federal Government as emolument of the casual staff and the amount actually paid to them was used to defray the shortfall in staff salary from 2004.
By the Appellant’s defence as reproduced above, the Appellant admitted that the 41 casual staff which she represented in the budget were yet to be converted to permanent staff as at the time the budget proposals were submitted to the Federal Government. She also admitted that she was aware that Exhibit 83, the handover note did not disclose the true status of the 41 casual workers, and that is why they were subjected to interview with a view to converting them to permanent staff. Finally she admitted that the difference between the actual money paid to the 41 casual staff and the money received from the Federal Government was used to offset outstanding salaries of other staff, which is not the purpose for which the money was requested for in the budget. All these admissions were not disclosed to the Federal Government when the budget proposals were submitted.
The facts admitted by the Appellant represent the allegation against her for which she was arraigned before the trial Court. The law is settled beyond any argument that admitted facts require no further proof. See NNPC vs Klifco (Nig) Ltd (2011) 10 NWLR (Pt.125) 209: Ikare Community Bank vs Ademuwagun (2005) 7 NWLR (Pt.924) 275; Ogolo v. Fubara (2003) 11 NWLR (Pt.831) 231;Adeleke vs Aserifa (1986) 3 NWLR (Pt 30) 575: Nnonye vs. Anyichie (1989) 2 NLWR (Pt.101) 110.
Learned counsel for the Appellant argued forcefully that the learned trial Judge failed to advert to the fact that the defences so enumerated negated any corrupt intention on the part of the appellant. According to the learned counsel, the Court of Appeal incorrectly held that the prosecution established the required mens rea for a conviction on the offence charged. In a further argument, learned counsel submitted that the Lower Court was wrong to have affirmed the conviction of the Appellant when the evidence led before the trial Court negated any corrupt intention.
Section 17(1)(c) of the Corrupt Practices and Other Related Offences Act 2000 provides as follows:-

…………………….D…………………….

17 (i) any person who corruptly
(a)
(b) ……………………….
(c) knowingly gives to any agent, or being an agent knowingly uses with intent to deceive his principal, any receipt, account or other document in respect of which the principal is interested and which contains any statement which is false or erroneous or defective in any material particular, and which to his knowledge is intended to mislead his principal or any other person, is guilty of an offence and shall on conviction be liable to five years imprisonment.”

From the provision of Section 17(1)(c) which I have reproduced hereinabove, for the prosecution to succeed, it must prove that the accused knowingly deceived his principal or intended to deceive his principal by presenting a document in which the principal is interested in and that the document contains false material. A man’s intention can only be established by circumstances and facts leading to the commission of the crime for which he is charged. It is very difficult to know what a man intends without resorting to chains of events that culminated into the acts complained of. It is only God and perhaps the devil whose powers are beyond human comprehension that will know a man’s intention. Intent is defined in Wager vs Pro C.A 603 F.2d 1005 as a mental attitude which can seldom be proved by direct evidence, but must ordinarily be proved by circumstances from which it may be inferred. Also in State vs Gantt 26 NC, App. 554 intent is defined as a state of mind existing at the time a person commits an offence and may be shown by act, circumstances and inferences deducible therefrom. See State v. Evans 219 Kan 548 p.2d 772, 777. From the facts of this case the Appellant and the Provost of the college knew that the 41 casual staff were not permanent staff. This is clearly admitted by the Appellant who said because of that knowledge, they interviewed the 41 casual staff with a view to converting them to permanent staff.
I therefore do not see the rationale behind learned counsel’s argument that the prosecution failed to prove that the Appellant had the necessary intention to commit the offence for which he was charged. The Court of Appeal was right when it affirmed the decision of the trial Court. Section 17 (1)(c) of the Act does not suggest that money lost as a result of the receipt or misrepresentation must be recovered from an accused before he could be found guilty of the offence. Mere deception and presentation of false and erroneous or defective material by a person with intent to mislead his principal or any other person is enough. The omission of the word corruptly from the reproduction and consideration of the provision of Section 17 (1)(c) of the Act by the Court of Appeal has not affected the quality of its judgment. I have also read through the reply brief and I have found that it contains argument canvassed in the Appellant’s brief of argument. The essence of a reply brief is not to reopen argument already canvassed. It is to reply to new issues that have arisen in the Respondent’s brief of argument. Learned counsel for the Appellant has not convinced me to overturn the decision of the Lower Court on this issue, which I resolve against the Appellant.
Having resolved the two issues submitted for the determination of this appeal against the Appellant, this appeal shall be and it is hereby dismissed.
The decision of the Lower Court is accordingly affirmed.
IBRAHIM TANKO MUHAMMAD, J.S.C.: This is an appeal against the judgment of the Court of Appeal, Ibadan Division delivered on the 14th of July, 2015 in which that Court dismissed the appeal against appellant’s conviction and sentence by the High Court of Oyo State, Ibadan for offences brought under the Independent Corrupt Practices And Other Offences Act, 2000. (ICPC Act).
I have had the privilege of reading the judgment of my learned brother, Galinje, JSC. I am also of the view that the appeal lacks merit and ought to be dismissed. I too, dismiss same.
OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother Galinje, JSC just delivered. I agree entirely with the reasoning and conclusion that the appeal is lacking in merit and should be dismissed. I too will dismiss the appeal. The decision of the Lower Court is affirmed.
Appeal dismissed.
KUMAI BAYANG AKA’AHS J.S.C.: The leading judgment in this appeal was prepared by my learned brother, Galinje JSC. He considered all the issues raised in the appeal and found that the appeal lacks merit. I totally agree that the appeal should be dismissed. I however

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wish to say a few words regarding issue 1 if only for emphasis.
Issue 1 agitated by the appellant in this appeal is that by virtue of the combined effect of Section 251(1)(p) and (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and the facts of this case, the High Court of Oyo State lacked jurisdiction to try the appellant for the offences charged.
Section 251(1)(P) and (3)states:-
“251(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes or matters –
(p) the administration or the management and control of the Federal government or any of its agencies;
(3) The Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of 
which jurisdiction is conferred by Subsection (1) of this section.”
Learned counsel for the appellant is contending that since Section 251(3) of the Constitution confers criminal jurisdiction on the Federal High Court in respect of matters over which it has civil jurisdiction under Section 251(1) went further to argue that one of the areas over which the Federal High Court has exclusive jurisdiction is in matters involving the administration, management and control of the Federal Government and its agencies and as the conduct forming the basis of the charge against the appellant was taken in his capacity as the Bursar of the Federal Co-operative College, Ibadan (a Federal Agency) only the Federal High Court could validly try the commission of the offences alleged to have been committed as stated on the charge. He further argued that to hold the view as decided by the Court of Appeal that the exercise of jurisdiction under Section 251(3) is not exclusive to the Federal High Court but should be exercised concurrently by the State High Court and of the Federal Capital Territory would run contrary to the principles underlying the establishment and continued existence of the Federal High Court which for all intents and purposes is intended to serve as a Court dealing exclusively with matters stipulated in Section 251(1)(p) of the Constitution
Learned counsel for the appellant anchored his submission that the Federal High Court should exercise exclusive jurisdiction over the case against the background facts that the appellant and one Mrs. Ruth Adehwe Aweto who were bursar and provost respectively of the Federal Co-operative College, Ibadan prepared and submitted rolls and budget proposals for the staff of the College for 2006 wherein they presented 41 casual staff as permanent staff. As a result of this presentation to the Federal Government, the sum of N7,041,801.15 was released every year as salaries and emoluments for the said staff but the amount that was paid to the casual staff was N3,690,000.00 only and when this came to light, they were arraigned before the High Court of Oyo State and charged with conspiracy to commit an offence and for using a document which is defective in material particular with intent to deceive and mislead the principal which are offences under the Corrupt Practices and other Related Offences Act 2000 contrary toSection 26(1)(c) and punishable under Section 17(1)(c) of the Independent Corrupt Practices Commission (ICPC) Act 2000. It is against this background that learned counsel argued that since the accused used the money to pay outstanding salaries of staff of the Co-operative College which touches on the administration or the management and control of a Federal Government Agency, the case should be heard exclusively by the Federal High Court.
Learned counsel for the respondent made reference to Section 251(p) (s) and (3) and after reproducing Section 251(1), went on to state that it is followed by a long list of civil causes and matters that the Federal High Court has exclusive jurisdiction over and to demonstrate that this list is not exhaustive, he set Section 251(1)(s) and (3)which provides-
“such other jurisdiction civil or criminal to the exclusion of any other Court or not as may be conferred upon it by on Act of the National Assembly.
(3) …………..”
 (already reproduced in this judgment), and submitted that what is immediately evident in the provisions above is the absence of the word exclusive in Subsection (3) of Section 251 of the 1999 Constitution. He argued that if the framers of the Constitution had intended the Federal High Court to have exclusive jurisdiction in

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criminal matters relating to the revenue of the Federal Government of Nigeria, they would have said so and that the appellant is trying to read into the section what is not there and what was not intended by the framers of the Constitution. He then submitted that the Supreme Court noted the absence of the word exclusive in Section 251(3) and that made it to validate the provisions of the ICPC Act 2000 and pronounced the Act as constitutional in Attorney-General of Ondo State v. Attorney-General of the Federation & Ors (2002) 9 NWLR (Pt.772) 222. He argued that the word “also” in Section 251(3) has never meant “the same thing” or used interchangeably with the word “exclusive” in legal drafting. He said the Courts are bound to give the correct interpretation of the law and not one that could lead to ambiguity or absurdity and referred to Fawehinmi v. Inspector-General of Police (2002) 7 NWLR (Pt.767) 606. 
I agree with the submission of learned counsel for the respondent that if the framers of the Constitution intended to invest the Federal High Court with exclusive jurisdiction in criminal matters relating to the revenue of the Federal Government, this would have been taken care of in Section 251(1) by stating that the exclusive jurisdiction to be exercised by the Federal High Court is in respect of both civil causes and criminal matters and the section will read as follows:-
25-(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and criminal matters-“(underlining mine for emphasis)
If Section 251(1) had been framed as stated above, reading it with sub-paragraph (a) will fit into the interpretation that learned counsel for the appellant has advanced in his argument. In construing sub-paragraph(s) of Section 251(1) read along with Subsections (2) and (3), the Lower Court stated at pages 537-538 per Tsammani JCA as follows:-
“It appears therefore to me that, the criminal jurisdiction of the Federal High Court, by a combined reading of Section 251(1)(s), (2) and (3) of the Constitution is restricted to offences on treason, treasonable felony and other related offences, and criminal offences affecting any of the matters enumerated in Paragraph (a) – (r) of Subsection (1) of Section 251 of the Constitution. As stated earlier, the question that has arisen for determination is whether such criminal jurisdiction is exclusive to the Federal High Court or not. Paragraph (s) to Subsection 1 (supra) gives power to the National Assembly to donate such other civil or criminal jurisdiction on the Federal High Court; and the National Assembly in donating such jurisdiction shall indicate whether such jurisdiction shall be to the exclusion of any other Court or not.
Now, the offences for which the appellant was charged, tried and convicted have been created under the Corrupt Practices and Other Related Offence Act (otherwise called Anti-Corruption Law 2000). By Section 26(2) of the I.C.P.C. Act (supra):-
“Prosecution for an offence under this Act shall be initiated by the Attorney-General of the Federation, or any person or authority to whom he shall delegate his authority, in any superior Court of record so designated by the Chief Judge of a State or the Chief Judge of the 
Federal Capital Territory, Abuja under Section 60(3) of this Act. Every prosecution for an offence under this Act, or any other law prohibiting bribery, corruption, fraud or any other related offence shall be deemed to be initiated by the Attorney-General of the Federation.
By the above stated provision all State High Courts, within the Federation and the High Court of the Federal Capital Territory have been given jurisdiction to try all offences under the I.C.P.C Act. This is so because, it is inconceivable that the Chief Judge of a State will venture into the territory of the Chief Judge of the Federal High Court to designate Judges in the Federal High Court to try offences under the Act”

This is very sound reasoning.
The conclusion reached by the Lower Court is that the prosecution for offences under the I.C.P.C. Act is not within the exclusive preserve or jurisdiction of the Federal High Court. The Lower Court was right in so deciding. It accords with the decision of the full Court in A.G Ondo v. Attorney-General of the Federation & 35 Ors (2002) 9 NWLR (Pt.772) 222.
The guide to the interpretation of unambiguous statutory provisions including the Constitution is that they require no resort to any cannon of construction but they must be read in their plain and ordinary words which best give the meaning. The answer to the first issue therefore is that the High Court of Oyo State had jurisdiction to try the appellant under the Corrupt Practices and other Related Offences Act, 2000.
With these few remarks, I agree entirely with the judgment of my learned brother, Galinje JSC that this appeal completely lacks merit and it is hereby dismissed.
AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead Judgment delivered by my learned brother, Galinje, JSC, and I agree entirely with his reasoning and conclusion, which I hereby adopt, as I have nothing useful that I can add to it. Appeal is dismissed. The decision of the Lower Court is accordingly affirmed.

Appearances

O.O. Ogungbade with him, Toyese Owode and O.A Adenipekun-For Appellant

AND

Enosa Omoghibo with him, O.G. Owuagwu-For Respondent.

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