When Court Raises Issues Suo Motu, Parties Must Be Heard
AFacts
petition was written to the Economic and Financial Crimes Commission (EFCC) by the Central Bank of Nigeria (CBN) bordering on financial misappropriation and false misrepresentation of financial records by the Respondents, during their tenure of the management of Fin Bank Plc. The 1st Respondent was the Managing Director while the 2nd to 4th Respondent were Executive Directors of the Bank. The EFCC in the course of its investigation, found that the Respondents transferred funds to fake companies incorporated by them, through two separate stock broker companies. It was discovered that funds of the bank in excess of N20 billion and N18 billion, had been transferred to a certain Springboard Trust & Investment Limited and Integrated Trust Investment Company Limited, respectively, and was used by the latter to acquire several units of shares of Fin Bank Plc in the name of seven fake companies, incorporated by the Respondents. The transaction relating to the funds allegedly stolen through Springboard Trust and Investment Limited, formed the basis of an information filed against the Respondents at the trial court.
Notice of Preliminary Objection
The Respondents filed a preliminary objection, urging the court to strike out the information preferred against them, as incompetent. The trial court dismissed the preliminary objection. The Respondent appealed to the Court of Appeal. The appeal was allowed. The Appellant then appealed to the Supreme Court.
At the Supreme Court, Chief Idigbe SAN for the 1st Respondent filed a notice of preliminary objection, challenging the competence of the Appellant’s notice of appeal. He argued that the notice of appeal was not signed by the Appellant and was therefore, not competent. Counsel argued further that, the appeal was being prosecuted by a private prosecutor, on the basis of a defective and inadequate fiat, and that any Appellant’s brief arising therefrom, was incompetent. He stated that the fiat was issued for a definite purpose, and the fiat had elapsed after the conclusion of the case commenced at the trial court in 2010. He relied on Order 9 rule 3(1) of the Supreme Court Rules and on the cases of
LEADERS & COMPANY LTD & ANOR v MUSA BAMAIYI
(2010) LPELR 1771 (SC), among others. Chief J.B. Daudu SAN, responding on behalf of the Appellant, submitted that it, not being a natural person, cannot personally sign its notice of appeal. He contended that by Order 9 rule 3(1) of the Supreme Court Rules, counsel can sign on behalf of an Appellant who is not a natural person. Chief Daudu SAN further submitted that, the fiat was not restricted to the prosecution of the Respondents at the trial court alone, and a fresh fiat was not required in order to prosecute the appeal. He relied on Ikpasa v Bendel State (1981) NSCC 200.
The Supreme Court in dismissing the preliminary objection, relied on (supra) and
(2013) 17 NWLR (Pt. 1382) 157 at 163, in holding that interpreting Order 9 Rule (3), that where the person appealing is an unnatural person which phrase includes a body corporate, the proper person to sign the notice of appeal is an officer of the Appellant or its legal representative. The Supreme Court in resolving the issue of the fiat, held that once a fiat is issued, it remains valid to prosecute or defend a case throughout the case, particularly where it was issued in general terms. The Supreme Court also held that, because an appeal against the decision of a trial court is deemed to be continuation of the trial, the fiat would be deemed operable to the conclusion of the trial, including any appeal therefrom.
STATE IKPASA v BENDEL STATE Substantive Appeal Issues for determination
The Supreme Court adopted the issues for determination formulated by the Appellant:
1. Whether the Court of Appeal was right in holding that the offence of stealing preferred against the 1st Respondent relates to the control of capital issues, and the High Court of Lagos State had no such jurisdiction to entertain same, when such an issue was neither raised nor placed before the Court of Appeal, by either of the parties;
2. Whether the learned Justices of the Court of Appeal were right when their Lordships held that, the High Court of Lagos State had no requisite jurisdiction to try the 1st Respondent for the offences of stealing by conversion preferred against him under section 390(7) of the Criminal Code Law of Lagos State CAP C17, Laws of Lagos State, 2003;
3. Whether the learned Justices of the Court of appeal were right in holding that the information preferred against the 1st Respondent at the High Court of Lagos State amounted to subjecting the 1st Respondent to double jeopardy.
Arguments NWITE v
The Appellant, arguing issue 1, contended that the decision of the Court of Appeal, that the complaint of stealing by conversion into shares, concerns a matter of capital issue which is an item on the Exclusive Legislative list, and therefore within the exclusive jurisdiction of the Federal High Court, did not In the Supreme Court of Nigeria Holden at Abuja On Friday the 1st Day of July, 2016
Walter Samuel Nkanu Onnoghen Olabode Rhodes–Vivour Nwali Sylvester Ngwuta Musa Dattijo Muhammad Clara Bata Ogunbiyi Chima Centus Nweze Amiru Sanusi
SC.74/2014, SC.73/2014, SC.75/2014 emanate from the issues distilled by the 1st Respondent for the determination of the lower court. He argued that the lower court is not permitted by law to raise an issue suo motu , and proceed to determine same, without affording the parties the opportunity of addressing it on the point. He relied on the case of (1992) 7 NWLR (Pt. 254) 377. The 1st Respondent’s argument on issue 1 was to the effect that, he raised the issue when the appeal was being heard by the lower court. He contended that since the issue was one touching on jurisdiction, the manner and time of raising same does not matter. He submitted that section 122(2)(a) of the Evidence Act, which provides that courts are entitled to take judicial notice of all laws, enactments and subsidiary legislation, provides one of the exceptional situations where a court having raised a matter suo motu, can resolve it without input from the parties. He further relied on (2007) 10 NWLR (Pt. 1042) 320 at 345-346.
On issue 2, Chief Daudu SAN contended that, a charge and the enabling law, remain the only two processes a court requires, to determine whether or not it has jurisdiction to try a particular offence. He argued that the offence of stealing having been created by a State law, the State law only confers jurisdiction on a State court within the purview of sections 211 and 272 of the 1999 Constitution. He argued further that the
USMAN v UMARU UZOHO v NCP
offences created by sections 105 to 114 of the Investment and Securities Act (No 27), do not dwell on the offence of stealing. He relied on (2010) 7 NWLR (Pt. 1193) 344 at 394, among others.
Counsel for the 1st Respondent countered that, the facts constituting the information against the Respondents, fall squarely within the purview of item 12 of the Exclusive Legislative List. He submitted that the proof of evidence shows Respondents to be officers of the Fin Bank Plc, and arraigned for offences which relate to investment in shares. He contended that by the operation of sections 251(1)(3) and 272(1) of the 1999 Constitution, which confers jurisdiction on the Federal High Court and the trial court, the decision of the lower court holding that the trial court lacks jurisdiction over the charges, is unassailable.
On the 3rd issue, Appellant’s counsel contended that, the rule against double jeopardy was wrongly invoked by the trial court. He argued that there was nowhere in the records, where it was shown that the Respondents had been previously acquitted or convicted by a court of competent jurisdiction, for the same offence they were being arraigned at the trial court. He submitted that the content of the charge at the Federal High Court, totally differs from the charges at the trial court.
In his argument, counsel for the 1st Respondent stated that the same facts led to the charges at the Federal High Court and at the trial court; he said that the facts which are on banking and capital market transactions, are the same facts that led to the information at the trial court, which were simply relabelled under the general offence of stealing. He further argued that double jeopardy is not restricted to situations where an accused has been previously convicted or acquitted. He relied on
(2009) 13 NWLR (Pt. 1159) 536; (1948) 12 WACA and on section 25 of the Interpretation Act, sections 157 to 161 of the Criminal Procedure Act.
v FRN NYAME v FRN Court’s Rationale and Judgement AHMED R v JINADU
The Supreme Court held in respect of issue 1, relying on section 36(1) of the 1999 Constitution, that the lower court cannot make any determination on an issue whether raised by a party or the court itself suo motu without hearing the party against whom the issue is raised. The Supreme Court agreed that a jurisdictional issue may be raised at any time and requires no leave of court; however, once raised, even by the court on its own, parties must be heard before a determination by the court. The court emphasised that the
lower court’s resolution of an issue it raised suo motu and without having heard the Appellant stands in breach of the Appellant’s right under section 36(1) of the 1999 Constitution. The court is without jurisdiction to proceed on the fruitless exercise. Proceedings resulting from such an exercise being a travesty of justice must be vacated.
On issue 2, the Supreme Court held that, in determining whether or not it has jurisdiction to try an offence, the court will consider the charge vis-à-vis the enabling law. Section 251(2) and (3) of the 1999 Constitution vests criminal jurisdiction on the Federal High Court regarding all the items for which the court is conferred exclusive jurisdiction under section 259(1) of the 1999 Constitution. The court held that none of the items pertains to simple stealing for which the 1st Respondent stands trial at the trial court. The 1st Respondent is not standing trial at the Federal High Court for the same offence of stealing preferred against him at the trial court. The Supreme Court concluded that stealing is a matter which falls under the legislative competence of the Lagos State House of Assembly and having been legislated upon, the trial court retains the jurisdiction to try the 1st Respondent.
The Supreme Court in resolving issue 3 relied on section 36(9) of the 1999 Constitution and stated that the 1st Respondent will come under the protection of the rule if he established the following factors:
i. He is being tried by any court or tribunal of competent jurisdiction for a criminal offence, and
ii. Having been either convicted or acquitted by the court or tribunal and
iii. He is being tried thereafter for the very offence or another with the same ingredients as the offence for which he was previously tried and either convicted or acquitted and iv. A superior court has not ordered the subsequent trial. The apex court concluded that the 1st Respondent failed to prove that the four requirements apply to him, therefore the rule against double jeopardy did not avail him.
The Appeal was allowed.
J.B. Daudu SAN, E.C. Ukala SAN, D.D. Dodo SAN, Rotimi Jacobs SAN, and 18 other Counsel for the Appellant.
Seyi Sowemimo SAN with Subomi Osinusi for the 1st Respondent.
Nnamdi Oragwu with Eric Otojahi and Ewis Okpoh for the 2nd Respondent. Ayodeji Adedipe for the 3rd Respondent.
Motiu Akinrinmade with Ahmed Oyegbami for the 4th Respondent.
Reported by Optimum Publishers Limited (Publishers of Nigerian Monthly Law Reports (NMLR))