In The Court of Appeal of Nigeria
On Monday, the 19th day of March, 2018
Before Their Lordships
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
FRED CHIJUNDU AJUDUA-Appellant
THE FEDERAL REPUBLIC OF NIGERIA-Respondent
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): The appellant in this appeal was arraigned before the High Court of Lagos State, Ikeja (Criminal Division) (the trial Court) on an information containing a 14-count charge for offences of conspiracy to obtain money by false pretences and obtaining money by false pretences from retired Lt. General Ishaya Rizi Bamaiyi contrary to Sections 8 (a) and 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act, No. 13 of 1995 as amended by Act No. 62 of 1999. He pleaded not guilty to each count of the information before Ipaye, J.
The information was subsequently amended on three occasions and he was arraigned before Oyefeso, J., before whom he again pleaded not guilty to all the counts of the information on 16/5/2017. Earlier, specifically on 26/1/2017, the appellant had filed an application for an order of the trial Court to quash the charge or strike out or dismiss the charge upon the grounds set out on the motion paper. The motion was supported by an affidavit of seven paragraphs and a written address. The appellant also filed a 7-paragraph reply affidavit and a written reply. These were filed in response to the respondent’s 31-paragraph counter-affidavit and written address in opposition to the motion.
On 16/5/2017, the trial Court, before taking the plea of appellant, in its ruling found no merit in the application and consequently dismissed the same.
Aggrieved by the ruling, the appellant has appealed to this Court by way of a notice of appeal containing seven grounds of appeal which was filed on 22/5/2017.
Pursuant to the rules of this Court, appellant filed his brief of argument on 17/8/2017 but it was deemed filed on 6/12/2017. Appellant also filed a reply brief on 31/10/2017. Both briefs were settled by Allens Agbaka, Esq.
The respondent filed her brief of argument on 13/10/2017 but it was deemed filed on 6/12/2017. It was settled by S.K. Atteh Esq.
At the hearing of the appeal on 8/1/2018, N.I. Quakers (SAN) for the appellant adopted the briefs of argument filed on behalf of the appellant in urging the Court to allow the appeal.
S.K. Atteh, Esq., for the respondent applied to withdraw his notice of preliminary objection incorporated in his brief of argument. He thereafter adopted the said brief of argument in urging the Court to dismiss the appeal.
Having been withdrawn, I hereby strike out the notice of preliminary objection and the arguments thereon at pages 3-4 paragraphs 4.0-4.6 of the respondent’s brief.
In the appellant’s brief of argument, the following issues are formulated for the determination of the appeal:
“(1) Whether the Trial Court was wrong in dismissing the Appellant’s Motion on Notice which challenged the Jurisdiction of the Trial Court and consequently assumed jurisdiction to try the appellant notwithstanding the incurable vice inherent in the Information/Amended Information.
(2) Whether or not the Trial Court was right in dismissing the Appellant’s application despite the avalanche of evidence, that the Appellant was not afforded the opportunity to make any statement in reaction or response to the entirely fresh statements obtained from the Respondent’s Witnesses particularly the Fresh Statements obtained from Lt. General Ishaiya Bamaiyi (Rt.) which was a product of Fresh Investigation.
(3) Whether the Trial Court was wrong in considering the fact that the Proof of Evidence which contains substantially extra-judicial statements of the Respondents proposed witnesses which was obtained after the filing of the Information did not disclose a Prima Facie case against the Appellant to warrant the Appellant to face a Criminal Trial.
(4) Whether or not the Trial Court was wrong in not considering the fact that the amendment of an Information can be done at any time of criminal proceedings but ought not to be based solely on fresh investigation that was done during the pendency of the suit that prompted the subsequent Amendment, which were products of inconclusive and shoddy investigation.
(5) Whether the Respondent who is a Federal Government Agency can validly and competently invoke the Criminal Jurisdiction of the State High Court and file an Information that contains Federal offences without first seeking and obtaining the Fiat of the Attorney General of Lagos State.
(6) Whether or not the Learned Trial Judge was not wrong for its failure not to consider that the offences drafted and contained in the Information/Amended Information offended the Rules of Drafting of an Information.”
In the respondent’s brief of argument, the following issues formulated for the determination of the appeal:
“(a) Whether the Learned trial judge was not right when it held that the amended information filed by the Respondent was valid and in accordance with the provision of Sections 155(1) and 251(3) of the Administration of criminal Justice Law of Lagos State, 2011. (This ground of appeal is based on grounds one and four of the Notice of Appeal).
(b) Whether the Appellant is not precluded from raising the issue that his statement was not included in the proof of evidence when this Honourable Court in Ajudua v. FRN (2016) 3 NWLR (Pt. 1500) 531 dismissed the Appellant’s appeal on the same issue. (This issue is based on ground two of the Ground of Appeal).
(c) Whether the appellant is not precluded from raising the issue that proof of evidence in this case at the lower Court does not disclose prima-facie evidence when this Honourable Court in CA/L/242c/2014 – Ajudua v. FRN in a judgment delivered on 18th June, 2014 held that the Appellant cannot raise the issue until the close of the prosecution’s case. (This issue is based on ground three of the Notice of Appeal).
(d) Whether the Respondent an Agency established under a law passed by the National Assembly required fiat of the Attorney-General of Lagos State to prosecute a Federal offence before the Lagos State High Court. (This ground is based on ground five and six of the Notice of Appeal).
(e) whether the count of charge contained in the amended information filed by the Respondent offended against the rules of drafting. (This issue is based on ground six of the Notice of Appeal).”
I note that issue 3 of the appellant is said to be derived from ground 3 of the grounds of appeal. Counsel for the appellant said so in the course of the hearing of the appeal and in his reply brief. Ground 3, shorn of its particulars, states:
“The Learned Trial Judge erred in law when it held that the proof of evidence which contains substantially extra-judicial statements obtained solely from the Respondent’s proposed witnesses which was done after the filing of the information discloses a prima facie case against the appellant to warrant the Appellant to face a Criminal Trial.”
All through the ruling of the trial Court, there is no where that that Court held that the proof of evidence disclosed a prima facie case against the appellant. In fact at page 504 of the record of appeal, the trial Court in its ruling stated as follows:
“Learned silk for the Defendant has made heavy weather about the fact that there is no prima facie case against the Defendant to warrant him standing trial. That submission is premature in the light of the clear provision in Section 260 (2) of the ACJL which guides this Court. It says: An objection to the sufficiency of evidence disclosed in the proof of evidence attached to the information shall not be raised before the close of the prosecution’s case.”
Ground 3 therefore does not arise from the decision of the trial Court. Rather it raises and attacks an issue not decided in the ruling the subject of this appeal. It is therefore incompetent and is liable to be struck out. SeeOkafor v. Abumofuani (2016) 12 NWLR (Pt. 1525) 117, 134-135 and Co-operative and Commercial Bank Plc v. Ekperi (2007) 3 NWLR (Pt. 1022) 493, 509 or (2007) 145 LRCN 571.
I accordingly strike out ground 3 of the grounds of appeal and issue 3 formulated therefrom.
The issues formulated in the appellant’s brief of argument less issue 3 represent his complaints in the notice of appeal better than the issues formulated in the respondent’s brief of argument, which suffer the defect of proliferation of issues in respect of issues (d) and (e) which are said to be formulated from grounds 5 and ground 6, respectively, of the notice of appeal. I shall therefore be guided by the remaining issues of the appellant in determining this appeal. I propose to consider issues 1, 2 and 4 of the appellant together.
ISSUES 1, 2 and 4.
– Whether the trial Court was wrong in dismissing the appellant’s motion on notice which challenged the jurisdiction of the trial Court and consequently assumed jurisdiction to try the appellant notwithstanding the incurable vice inherent in the information/amended information.
– Whether or not the trial Court was right in dismissing the appellant’s application despite the avalanche of evidence that the appellant was not afforded the opportunity to make any statement in reaction or response to the entirely fresh statements from the respondent’s witnesses particularly the fresh statements obtained from Lt. General Ishaiya Bamaiyi (Rt)
which was a product of fresh investigation.
– Whether or not the trial Court was wrong in not considering the fact that the amendment of an information can be done at any time of criminal proceedings but ought not to be based solely on fresh investigation that was done during the pendency of the suit that prompted the subsequent amendment, which were products of inconclusive and shoddy investigation.
Appellant’s counsel, arguing his issue 1, stated that it was conceded that the respondent has the liberty to amend an information at any stage of legal proceedings but it could not bring in statements that are products of fresh investigation that was conducted during the pendency of the information as, according to him, that would be prejudicial to the appellant, particularly where he was not afforded the opportunity to react to the fresh statements. Counsel set out the fresh statements which he said were a product of the fresh investigation.
He submitted that the filing of an information before the conclusion of investigation has the effect of a holding charge which is unknown to our criminal jurisprudence. Again, he contended that the investigation of the case was shoddy and inconclusive because of the continuation of the investigation after the filing of the information. It was his position that the appellant would be greatly prejudiced in the conduct of his case before the trial Court if he is to be tried based on the investigation conducted during the pendency of the case without his participation. He stressed the point that the appellant did not waive his constitutional right to make a statement.
Counsel conceded that the respondent is entitled to amend a charge at any time but that it cannot competently amend a charge for the sole purpose of bringing in fresh statements which are the result of investigation conducted after the filing of the charge. This, he said, is because there must be an end to investigation. He argued that the amended information and proof of evidence are incurably bad for failure to contain statement of the appellant which the respondent did not invite him to make. He took the position that the respondent had a duty to confront the appellant with the fresh statements and the failure to place the appellant’s statement before the trial Court was prejudicial to the appellant as it denied him of his right to fair hearing.
In respect of his issue two, appellant’s counsel submitted that every person charged with a criminal offence is guaranteed a right to fair hearing under Section 36 (1) of the Constitution of Nigeria, 1999 (as amended). It was his further submission that failure or refusal to obtain the statement of appellant amounted to a denial of his right to fair hearing and would result in a biased trial. In support of his submission, counsel cited and relied on many cases including Anoka v. Ikpo (2013) LPELR – 20419 (CA) and State V. Onagoruwa (1992) 2 SCNJI.
Arguing his issue 4, appellant’s counsel conceded that the respondent is entitled to amend her information but not so on the sole basis of investigation that was conducted after the filing of the information. He added that a defendant can only be arraigned upon the conclusion of an investigation. It was his contention that the respondent had a duty to confront the appellant with the fresh statements contained in the additional proof of evidence for the purpose of giving him the opportunity of making his extra-judicial statement.
On his part, counsel for the respondent referred to Sections 154 (1) and 252 (3) of the Administration of Criminal Justice Law, (ACJL) Lagos State and submitted that pursuant thereto, the respondent amended the information and filed additional proof of evidence. He noted that the respondent served the additional statements on the appellant to give him notice of the testimonies of the witnesses so as to ensure fairness. It was his contention that it is not the law that the prosecution must go further to take the statement of a defendant whenever it amends its charge or files additional proof of evidence. He stated that the details in the amended charge and additional proof of evidence relate to the allegations contained in the petition of General Bamaiyi alleging that the appellant and others obtained from him the sum of $8.9 Million by false pretence, which he (appellant) refused to respond to when confronted with the allegations by operatives of the respondent. Counsel referred to Rickey Tafar Mustapha (SAN) V. FRN, unreported decision of this Court in appeal No. CA/L/497/2016 delivered on 17/3/2017 to the effect that charging a person to Court is no bar to further investigation of the offence in the charge.
In respect of his issue 2, respondent’s counsel offered arguments that do not come under the issue. I therefore discountenance the same.
In resolving the three issues under consideration, it is pertinent to state that the gist of the contention of the appellant is that the respondent can not bring in statements of prospective prosecution witnesses that are the product of fresh investigation conducted after the filing of the information as that would be prejudicial to him particularly as he was not afforded the opportunity to respond to the statements. The original information was filed on 14/10/2013 but amendments were made thereto with the last being the one filed on 3/11/2014. Attached to it are statements of prospective witnesses for the prosecution made after the date of the filing of the original information.
Section 154 (1) of the ACJL, 2011 permits the prosecution to apply to alter or add to any charge or frame a new charge at any time before judgment is given or verdict is returned. There is no law that alteration or amendment of a charge cannot be based on facts gathered from investigation conducted after the filing of the original charge or information.
Section 252 (3) of the ACJL provides that the prosecution shall at any time before judgment be at liberty to file notice of additional evidence. It is thus within the discretion of the prosecution to file notice of additional evidence before judgment. The appellant seems not contest this position.
Investigation is within the province of the various investigatory agencies established by law and the Court will generally not interfere with the exercise of the discretion. See Fawehinmi V. Inspector-General of Police (2002) FWLR (Pt. 108) 1355. In Ajayi v. State (2013) 9 NWLR (Pt. 1360) 589, 605 it was held that there is no law which stipulates the order in which investigations are to be carried out and that criminal investigations are carried out based on information at the investigator’s disposal. It was further held that the investigator is to use his discretion to determine how to go about the work.
I am not aware of any law and I was referred to none that says that after initial investigation that led to the arraignment of an accused person, the investigatory body can not continue to investigate the same matter. In Rickey Tafar Mustapha (SAN) v. FRN, supra. Garba, JCA, stated that:
“The fact that a person is charged to Court for an offence or offences is no bar to continuing or further investigations of the said offences by the prosecution in order to unearth more facts and evidence to be presented to the Court during the trial in proof of the offence(s) the person is charged for. After all, it is the prosecution that bears the legal and evidential burden of proving the offences beyond reasonable doubt before the trial Court.”
Again there is no law that the prosecution must confront an accused person with the statements of prospective witnesses obtained in the course of further investigation conducted after filing of the information before it can bring in such statements by way of additional evidence. What is important is that the notice of the additional evidence is filed and served on the accused person to put him on notice of the same thus granting him time and facility to prepare his defence as required by Section 36 (6) (b) of the Constitution of Nigeria, 1999 (as amended). The appellant’s complaint is not that this was not done.
The contention that not obtaining the response of the appellant to the fresh statements or not affording him the opportunity to do so amounted to a denial of fair hearing entrenched in Section 36 (1) of the Constitution is without substance. Section 36 (4) of the Constitution provides that
“Whenever any person is charged with a criminal offence, he shall unless the charge is withdrawn, be entitled to a fair hearing within a reasonable time by a Court or Tribunal.” Subsection (1) of Section 36 is to the same effect.
It is evident from the above provision that what is within its contemplation is the hearing of a criminal charge by a Court or Tribunal. It does not apply to investigation of an alleged crime by an investigatory agency as in this instance. It is the law that investigation of an alleged crime is not a part of criminal proceedings. See Fawehinmi V. IGP supra.
It was the contention of the appellant that failure to exhibit an extrajudicial statement of the appellant to the information is fatal to the information. The appellant was afforded an opportunity to respond to the earlier statement of General Bamaiyi
but he chose not to respond or make his statement but to exercise his right to remain silent until after consultation with his legal practitioner as provided for in Section 35 (2) of the Constitution of Nigeria. Again the appellant, after meeting his legal practitioners, refused to make any statement on the basis that efforts were on to resolve the matter amicably with General Bamaiyi (see paragraphs 10, 11 and 12 of the counter-affidavit of the respondents at pages 423 and 424 of the record of appeal).
Given the circumstances set out above, there was no statement made by the appellant to be attached to the information. He cannot seek to profit from the circumstance. In Ajudua v. FRN (2017) 2 NWLR (pt. 1548)Â 1, it was held that the appellant having chosen to remain silent could not turn round to complain of a denial of the right to fair hearing. The necessity to take a statement from him in response to the fresh statements of the prospective prosecution witnesses recorded after filing the information did not arise as the law does not compel the prosecution to do so. After all, the appellant has the opportunity to cross-examine the witnesses having been served with their statements. In Ajudua V. FRN supra this Court held that additional evidence does not connote a statement of the accused person.
The contention by appellant’s counsel that the information amounts to a holding charge is without substance. A holding charge arises where a person is arraigned before a Court that has no jurisdiction over the matter with the intent of securing his detention by such a Court. A holding charge is unknown to Nigeria law. In this instance, it is not contended that the trial Court has no subject matter jurisdiction over the charge and so no issue of holding charge arises.
I therefore resolve issues 1, 2 and 4 against the appellant.
ISSUE 5 – Whether the Respondent who is a Federal Government Agency can validly and competently invoke the criminal jurisdiction of the State High Court and file an information that contains Federal offences without first seeking and obtaining the fiat of the Attorney General of Lagos State.
Appellant’s counsel contended that by not including the statement of the appellant in the documents attached to the information, the respondent breached Section 379 of the Administration of Criminal Justice Act (ACJA), 2015, thus robbing the Court of jurisdiction. Again, it was his submission that the respondent contravened the provision of Section 249 of the ACJL by initiating the information in the name of “Federal Republic of Nigeria” instead of “The State of Lagos”.
Counsel contended that being a Federal agency, the Economic and Financial Crimes Commission cannot competently file an information containing a Federal Law in a State High Court as that would amount to forum shopping. It was his view that such information ought to be filed at the Federal High Court.
For the respondent, it was argued that Section 174 of the Constitution vests the Attorney-General of the Federation with the power to prosecute an offence created by an Act of the National Assembly. Counsel referred to Adigwe V FRN (2013) 1 BFLR 326 in submitting that the Economic and Financial Crimes Commission (EFCC) is at liberty to prosecute criminal offences which relate to economic and financial crimes in any Court in Nigeria with or without a fiat. He also referred to Section 14 of the Advance Fee Fraud and Other Fraud Related Offences Act No. 14 of 2006 and Section 7 (2) (b) of the EFCC (Establishment) Act to buttress his submission.
Counsel then referred to Jibunu V FRN unreported decision of this Court in appeal No. CA/L/635/2013 delivered on 9/7/2015 to show that the respondent can prosecute in the name of the Federal Republic of Nigeria and not necessarily that of the people of Lagos State.
The first point to be made in resolving this issue is that the argument of appellant’s counsel is out of tune with the issue. The purport of issue 5 is as to whether the EFCC, a Federal Government agency, can invoke the criminal jurisdiction of the trial Court (a State High Court) without first seeking and obtaining the fiat of the Attorney-General of Lagos State. It follows therefore that the argument of appellant’s counsel to the effect that the respondent breached Section 379 of the ACJA 2015 by failing to attach a statement of the appellant to the information does not fall within the purview of the issue. I therefore discountenance the same. The same consideration applies to his argument as to the respondent not initiating the criminal proceedings in the name of the “The state of Lagos”.
It is also my view that it is outside the purview of the issue for the appellant to argue that the EFCC can not file information containing a Federal Law (i.e., Offence) in a State High Court as that would amount to forum shopping and that such information should be filed at the Federal High Court and not a State High Court. The issue as couched by the appellant is focused on first seeking and obtaining the fiat of the Attorney-General of Lagos State to file the information and not whether the filing of the information amounted to forum shopping or that it should be filed at the Federal High Court. Again appellant counsel’s argument is outside the perimeter of the issue and therefore deserves no consideration.
In case I am wrong in my view immediately above, it is clear from Section 174 (1) (a) and (b) of the Constitution of Nigeria, 1999 (as amended) and Sections 6 (c) (m), 7 (2) (b) and (f), 13 (2) and 19 (1) of the EFCC (Establishment) Act that the EFCC has the authority to institute and undertake criminal proceedings against any person before any Court of law in Nigeria (including the High Court of Lagos State) in respect of economic and financial crimes including offences under the Advance Fee Fraud and Other Fraud Related Offences Act (under which the appellant is charged). It can do so in its name or the name of the Federal Republic of Nigeria and does not require the fiat of the Attorney-General of a State including Lagos State to do so. See Saraki v. FRN (2016) 3 NWLR (pt. 15) 531 and Adigwe V. FRN (2013) 1 BFLR 926.
I therefore resolve issue 5 against the appellant.
ISSUE 6 – Whether or not the learned trial judge was not wrong for its failure not to consider that the offences drafted and contained in the information/amended information offended the rules of drafting of an information.
Appellant’s counsel referred to Section 208 (a) and (c) of the ACJA 2015 and Section 151 (a) of the ACJL 2011 and noted that four persons other than the appellant alleged to be at large were named in all the counts of the information as having committed the alleged offences; but the appellant is the only person named as defendant. This, he said, was contrary to rules of drafting of a criminal information including the rule against misjoinder of offenders. He drew the Court’s attention to count 1 in the information, viz; conspiracy and submitted that two or more persons must be found to have combined to ground conviction for conspiracy. It was his contention that for count 1, all the alleged conspirators should be stated as defendants in the information.
For the respondent, her counsel referred to Section 151 of the ACJL and submitted that the appellant can be tried alone.
Section 151 of the ACJL provides that:
“The following persons may be charged and tried together or separately as the Court may deem fit.
(a) when two or more persons who are charged with the same offence or of different offences committed in same transaction …
The provision vests the Court with the discretion to try separately or jointly two or more persons who are charged with having committed the same offence or offences. Thus charging the appellant alone for offences he is alleged to have committed with others who are at large does not offend any known rule of drafting of information or charge. The necessity for the separate trial of the appellant lies in the fact that other alleged offenders are said to be at large. It would be a clogging of the wheels of justice to hold that the appellant can not be charged separately simply because other alleged offenders are at large.
A person may be charged alone for the offence of conspiracy with others at large. His conviction in such a circumstance would depend on the evidence available. See Ogugu v. State (1990) 2 NWLR (Pt. 134) 539, 553.
I therefore resolve issue 6 against the appellant.
On the whole, the appeal lacks merit and it therefore fails. I accordingly dismiss the same and affirm the ruling of the trial Court.
JUMMAI HANNATU SANKEY, J.C.A.: I have had the benefit of reading in draft the Judgment of my learned brother, Ekanem, J.C.A. just delivered.
I agree entirely with the reasoning and conclusion that the Appeal lacks merit and ought to be dismissed.
Thus, I also dismiss the Appeal and affirm the Ruling of the trial Court.
ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read in advance a draft copy of the Judgment just delivered by my learned Brother, Joseph E. Ekanem, JCA, in which this appeal was dismissed.
The issues arising for determination in this appeal have been comprehensively resolved and I am in complete agreement with the resolution of the issues raised in this appeal. I also dismiss this appeal as it is devoid of merit. The ruling of the lower Court delivered on 16/5/2017 is hereby affirmed.
N.I. Quakers SAN with him, A. Agbaka, Esq. and O. Okonkwo, Esq-For Appellant
S.K. Atteh, Esq. with him, K.M.A. Oluseshi, Esq. and T.J. Banjo, Esq.-For Respondent