➥ CASE SUMMARY OF:
James Onanefe Ibori & Anor V. Federal Republic of Nigeria Ors. (CA/K/81C/2008 · 19 Dec 2008)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Forum shopping;
Fair hearing.
➥ CASE FACT/HISTORY
The Appellants and the three Respondents/Accused Persons, who are limited liability companies, were arraigned before the Federal High Court, Kaduna on the 13th of December, 2007. They pleaded not guilty to 103-count charge of corrupt enrichment, money laundering, etc., leveled against them. They later pleaded not guilty to 129-count amended charges on the 11th of January, 2008. After the 1st and 2nd Appellants were admitted to bail on the 11th of February, 2008, the lower court adjourned the matter to the 18th of February, 2008, for hearing. However, before the commencement of trial, the Appellants filed an application dated 18th February, 2008, praying for the following orders – ‘(1) An order transferring this matter to the Chief Judge of the Federal High Court for onward transfer and assignment to the Judicial Division where the 129 counts in this Charge were allegedly committed on the ground continuing with the trial in Kaduna is: (i) contrary to the provisions of the Federal High Court, (ii) grossly violates the Applicants’ right to fair hearing, particularly the right and opportunity to adequately prepare their defence to the 129 counts made against them. (iii) Kaduna is a forum non convenient chosen by the EFCC for reasons of forum shopping. (2) An order that the presiding Judge Hon. M. L. Shuaibu J. recuse himself from further participation in the above trial on the ground that the infringements disclosed in (1) constitute sufficient likelihood of bias.’
The application is supported by a 20-paragraph Affidavit deposed to by the 1st Appellant and a 2-paragraph Affidavit deposed by the 2nd Appellant, wherein they both averred that they were arrested by Officials of the Economic and Financial Crimes Commission (EFCC) on the 12th of December, 2007 accused of committing an offence within the jurisdiction of the Federal High Court, Kaduna, “in relation to certain amount of money, property of Delta State, which is alleged to have been transferred to a 3rd party for the benefit of the accused persons and which have been labeled ‘proceeds-of crime”‘. Furthermore, that none of the allegations have any connection with Kaduna and the alleged offences, properties, Bank accounts, documents, evidence and witnesses are not in Kaduna; that the EFCC filed the charges directly without following due process as required by the Federal High Court Act; and that the entire allegation is woven around legitimate expenditures of the Delta State Government.
The application was argued on the 5th of March, 2008, and in his ruling dated 10th March, 2008, the learned trial Judge, Shuaibu, J., held that the Federal High Court, Kaduna, is the proper venue for the trial and that the charges against the Appellants were validly filed in the Court. Dissatisfied with the decision, the Appellants appealed to this Court with Notices of Appeal containing six Grounds of Appeal each.
➥ ISSUE(S)
I. Whether the Federal High Court, Kaduna, is the right forum to try the Appellants for offences allegedly committed in Delta State, and concerning money/property belonging to the Delta State Government?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[‘In other words, the lower Court assumed jurisdiction to hear the matter because there is only one Federal High Court and Section 19 of the Economic and Financial crimes Commission (EFCC) (Establishment) Act and Section 19 the Money Laundering (Prohibition) Act vests the Federal High Court with exclusive jurisdiction over cases of Economic and Financial Crimes, which includes money laundering. But that is wrong. The provisions of Section 19 and 45 of the Federal High Court Act have absolutely nothing to do with the provisions of the said Sections 19 of the EFCC Act and Money Laundering (Prohibition) Act; they deal with completely different aspects of the jurisdiction of the Federal High Court.’
‘Section 45 of the Federal High Court Act specifically provides that offences are to be tried by a Court exercising jurisdiction in the area or place where the offences were committed. In this case, the offences were allegedly committed in Delta State, and the Respondent filed the charges against the Appellant is directly in the Kaduna Division of the Federal High Court without going through the Chief Judge or any one. There is nothing in the Respondent’s Counter Affidavit setting out the criteria used or reason for choosing the Federal High Court in Kaduna.’
THE CASE OF ABIOLA V. FRN IS DISTINGUISHABLE FROM THIS CASE
‘The lower Court relied on the decision of this Court in Abiola v. FRN (supra), to justify the Respondent’s action in choosing its Court directly, but Abiola’s case is easily distinguishable from this one. To start with, the charges against Abiola related to treason, which is “the offence of attempting to overthrow the government of a State to which one owes allegiance, either by making war against the State or by materially supporting its enemies” – see Black’s Law Dictionary, 8th Ed. Treason, as the Appellants rightly submitted, therefore “relates to the entire country and can consequently be tried in Abuja which is the seat of Government.” This case, on the other hand, relates to offences of corrupt enrichment and money laundering, which were allegedly committed by the Appellants when the 1st Appellant was the Governor, of Delta State, and the charges are therefore localized to Delta State. If the Respondent felt so strongly that it would not be safe for it to try the Appellants in the Benin Division of the Federal High Court, which oversees Delta State, then it should have taken the matter to the Chief Judge of the Federal High court for assignment to any other division. Filing the charges against the Appellants directly at the Kaduna Division of the Court for offences allegedly committed in Delta State, without recourse to the Chief Judge or any directive to that effect goes against the spirit and essence of the provisions of the Federal High Court Act, which vests the Chief Judge of the Federal High Court with the power to create and assign any judicial function to any Judge or Judges in a Judicial Division and which also stipulates that offences shall be tried in the judicial divisions where they are alleged to have been committed. The Appellants also complained that initiating criminal proceedings in Kaduna drastically abridged their fundamental right to fair hearing.’
‘It is to be noted that the alleged offence treason charged in the case of Abiola v. F.R.N. (1995) 3 NWLR (Pt. 382) 203 by its nature has reverberating, resonating, disruptive and damnifying effects all over the country. It is thus to be expected that such alleged offence can be tried anywhere in the country, more so, when segments of the planning towards commission of the offence involved conspiracy which took place in different parts of the country. The given facts and circumstances of this case are distinct and can be distinguished from the ones in Abiola’s case. Indeed, the facts of this case differ significantly from Abiola (supra) referred to by both parties herein and relied upon by the 1st Respondent herein. Abiola (supra) involved allegation of commission of treason which is an offence against both the territorial and sovereignty of the entity known as the Nigerian State. It was thus triable anywhere in Nigeria. The instant case is not similar or akin to Abiola (supra). Hence the same set of principles or tests of jurisdiction as in Abiola’s case cannot and should not be invoked thereon.’
‘The lower Court appears to have missed the point entirely. The issue is not about the unfriendliness of the environment of the trial; it is about the inconvenience to the Appellants and the hardship entailed in moving over 250 witnesses and volumes of documents from Delta State, where the offences were allegedly committed, to Kaduna, 700 kilometers away. The Respondent argued that in Nwankwo’s case there was no order of Court or even administrative directive from the Chief Judge before the case was transferred from the Enugu Judicial Division of the High Court of Anambra State to the Onitsha Division where it was heard, but that is exactly what the Respondent did in this case. The High Court of a State is one Court but it has judicial divisions, same as the Federal High Court, which is one Court but with Judicial divisions. “It did not obtain an order of Court or even’ an administrative directive from the Chief Judge of Federal High Court before it bypassed the Benin Division of the Court, which oversees Delta State, and filed the charges relating to offences allegedly committed in Delta state directly at the Kaduna Division. The Respondent also argued that in Nwankwo’s case learned Justices’ comments were obiter, meaning they were made “by the way” – that is, incidentally or collaterally, and not directly upon the question before the Court – see Black’s Law Dictionary: 7th Ed. But that is neither here nor there, even if the scathing remarks made by the learned Justices were obiter; it is the principles enunciated that counts. We are talking about fair hearing and the issue of fair hearing is one of substance and not form, this each case is decided on its own merits. The main thing is that that condemned a similar situation as in this case, where the EFCC hand picked a Court and filed its charges there 700 kilometers away from where the offences were allegedly committed. The principles enunciated in that case are quite apt and very instructive.’
THIS CASE SMACKS LACK OF FAIR HEARING
‘In this case, if a reasonable man is told that the Appellants were arraigned before a Court in Kaduna for offences allegedly committed in Delta State, and on the day they were granted bail after two months in prison custody, the Court gave them one week to prepare their defence, would he be able to say that they were treated fairly by that Court? How would the reasonable man see it if he also told that within that one week, the Appellants were expected to brief their lawyers and see to the movement of about 250 witnesses and volumes of vital documents from Delta State to a Court in Kaduna that the EFCC handpicked to try them? Surely, any reasonable man would say that proceeding with their trial in that Court would jeopardize the Appellants’ rights to a fair hearing/trial. The major plank of the Appellants’ contention is the presiding Judge was not designated to hear EFCC cases and for the prosecution to seek him out and file the charge directly before him is forum shopping.’
‘There is nowhere in the said Acts mentioned it at specifically designated “Hon’ Justice M. L. Shuaibu” as an “EFCC Judge”. There is nothing on record, no gazette, no circular, no order or even an administrative directive from the Chief Judge of the Federal High Court showing that he was so designated, and can hear the matter in Kaduna. The only conclusion or reasonable inference one can draw is that EFCC preferred his Court and the only reason must be for forum shopping. I do not see how the learned trial Judge could justify assuming jurisdiction in this case. Why was his Court chosen? What were the criteria used to determine why he should be the one to hear the matter? I hold the firm view that it is not in any Judge’s interest to be identified as an EFCC Judge, Customs Judge or Police Judge, etc. The natural law of self preservation envisages that no one will deliberately go where his interests will be adversely affected or derailed, so the impression any one would have is that the Judge so chosen will do the EFCC’s bidding. So, the Appellants’ apprehend on as to the real likelihood of bias if they are to be tried at the Kaduna Division of the Federal High Court is valid.’
‘I must also comment on the Respondent’s argument that the Appellants should not complain because they can afford to move the said 250 witnesses and relevant documents from Delta State to Kaduna. This line of argument is quite disturbing and has no basis in our law. Justice is justice for all, rich and poor alike and without fear or favour. The fact that the 1st Appellant is a former Governor should have no bearing whatsoever on where he is tried as an accused person. He is a Nigerian citizen and should be tried where others are being tried. There is definitely no room in our criminal justice system for different laws and different Courts for different categories of Nigerian citizens. The Respondent also argued that the 2nd Appellant should not complain because the Delta State Government paid several sums of money to her account, which was later transferred abroad. But these are the very allegations for which she is standing trial. She is presumed innocent until proven guilty, and the respondent cannot use the allegations that are yet to be proved by it to argue against her right to a fair hearing. The Appellants urged this Court to nullify the proceedings and strike out the charge, but that is a tall order. As the Respondent rightly submitted, they applied for a transfer, and that is what they will get.’]
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✓ DECISION:
‘There is merit in this appeal and it is hereby allowed. The decision of the lower Court in its Ruling delivered on the 10th of March, 2008 is hereby set aside. In its stead, I do hereby order that this matter be transferred to the Chief Judge of the Federal High Court for onward transfer and assignment to the Judicial Division where the 129 Counts in the charges leveled against the Appellants were allegedly committed.’
➥ FURTHER DICTA:
⦿ DISTINCTION BETWEEN JUDICIAL POWERS AND JURISDICTION
To resolve this issue, we will have to look closely at the reasoning of the lower Court, bearing in mind that there is a distinction between judicial powers and jurisdiction, which in turn is also of various types. Judicial power constitutes the authority a court has to adjudicate and decide any matter before it which is within its jurisdiction. Thus, a court cannot exercise judicial powers on matters outside its jurisdiction. Jurisdiction, on the other hand, refers to “the authority a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision” – see Mobil Producing (Nig.) Unlimited v. LASEPA (2002) 18 NWLR (Pt. 798) 1. Jurisdiction may be territorial or substantive, inter alia. Substantive jurisdiction refers to matters over which the Court can adjudicate, and it is usually expressly provided by the Constitution or enabling statutes. Territorial or geographical jurisdiction refers to the geographical area in which matters brought before the Courts for adjudication arose. Courts are usually not seized of matters that occur outside their territory. Thus, where ingredients of an offence occur outside the territorial jurisdiction of the Court asked to adjudicate over the matter, such a Court will not assume jurisdiction over the offence for apparent lack of jurisdiction. — A. A. Augie JCA.
⦿ FORUM SHOPPING SHOULD NOT BE INDULGED IN BY PROSECUTION
They referred this Court to Nwankwo v. State (1983) 1 NCR 366 where this Court deprecated in strong terms the attitude of the prosecution in looking for a favourable judex to prosecute a person, particularly the condemnation of Belgore, JCA (as he then was), thus: “It is true that one would normally frown at the procedure whereby the accused is based at Enugu and , the complainant is similarly based at Enugu, ‘the accused directly gave copies of the offensive publication to one of the witnesses, Emmanuel Okala, at Enugu, the victims of the publication – the Government of Anambra – are based at Enugu, and presumably ‘the application for consent was made at Enugu, yet one finds the case being sent to a particular Court in Onitsha. It does not augur well for the independence of the judiciary to indulge in this practice. There are capable and eminent Judges in Enugu who who could have taken the case. In a democracy, the executive may falter, the legislature may overstep its bounds, it is the judiciary that holds the balance between two. It is the norm in Nigeria that once a person’s right seems threatened he says “I shall go to Court.” When one of the two arms starts choosing which Court to go to, and goes to one far away when many are at ‘his doorstep, the impartiality of the judiciary could be questioned. It beats my imagination how the case found its way from Enugu. With the attitude of the learned trial Judge to the preliminary objections on matters touching squarely on the foundations of the propriety of the procedure whereby the case was brought, and thus whether it was validly brought, I fear the Judge left much to be desired”, (Highlights mine) Olatawura, JCA (as he then was) also stated as follows in that case- “A lot of time was spent considering whether the Appellant had a fair hearing. Where an accused can be easily tried in his place of residence and where nearly all the five witnesses reside in the same town, but he is made to travel about 100 km to answer a charge which carries a maximum punishment of two years’ imprisonment, he cannot be said to have a fair hearing. A fair hearing as postulated by the Attorney-General in his able submission on the point does not stop with the accused’s opportunity to cross-examine, give evidence and have a lawyer of his choice, but should include the opportunity to have the case against him heard in a place where the offence was committed, and not where jurisdiction is conferred by manipulations. The question whether there has been a fair hearing is one of substance and not form and must be decided in the light of he prevailing circumstances in a particular case. I will add that the Prosecution should never give the impression that they will always prefer to behave like a shopper who will naturally choose a seer whose market price is less.” — A. A. Augie JCA.
⦿ EVEN IF OBITER, IT IS THE PRINCIPLES ENUNCIATED THAT COUNT
But that is neither here nor there, even if the scathing remarks made by the learned Justices were obiter; it is the principles enunciated that counts. — A. A. Augie JCA.
⦿ FAIR HEARING IS ALL ABOUT FAIRNESS
Fair hearing is all about fairness. Fairness as the Supreme Court observed in A.-G. Rivers State v. Ude (2006) 17 NWLR (Pt. 1008) 436 “is the determining factor for the application of principles of natural justice. In other words, natural justice is fair play in an action.” See also Ezechukwu v. Onwuka (2006) 2 NWLR (Pt. 963) 151 where this Court held that “fair hearing entails doing during the course of trial all that will make an impartial observer to believe that the trial has been balanced and even to both sides.” Fair hearing is also about perception. Thus, the true test of fair hearing is the impression of a reasonable man, whether from his own observation justice has been done in the case. — A. A. Augie JCA.
⦿ WHAT IS FORUM SHOPPING
“Forum shopping” occurs when a party attempts to have his action tried in a particular Court or jurisdiction where he feels he will receive the most favourable Judgment of verdict – see Black’s Law Dictionary 6th Ed. Forum non convenient is Latin for “an unsuitable Court”. It is “the doctrine that an appropriate forum – even though competent under the law – may divest itself of jurisdiction if, for the convenience of the litigants and the witnesses, it appears that the action should proceed in another forum in which the action might also have been properly brought in the first place also” – see Black’s Law Dictionary 8th Ed. See also The Longman Dictionary of Law 7th Ed., where it is defined as- “Doctrine whereby the Court refuses to exercise its right of juristic on because, for the convenience of parties and in the interest of justice, a claim should be brought elsewhere. The phrase means, not that the English Court ”is not convenient’ but the some other Court is more suitable.” — A. A. Augie JCA.
⦿ SHOULD BE TRIED IN THE DIVISION OF THE FEDERAL HIGH COURT WHERE THE CAUSE OF ACTION AROSE
The law is also settled that a court’s jurisdiction is prescribed, embedded or engraved in the statute which creates it. It is usually circumscribed and not open ended and at large. Thus, the fact that there is only one Federal High Court with divisions of the said Court dotted all over the country for administrative convenience, logistic and other purposes, does not mean that any or all offences allegedly committed by an accused person anywhere in Nigeria, can be tried in any division of the said Federal High Court. Ordinarily, and without express provisions the creating statute, a court’s jurisdiction should not be extended beyond its territorial limit. What is more, jurisdiction is not subject to emotion, sentiment, whims and caprices of anyone. It is firmly rooted and must be in accordance and consonance with laid down provisions in the creating statute. — M. A. Oredola JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Amina Adamu Augie, JCA.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
J.B. Daudu, SAN.
⦿ FOR THE RESPONDENT(S)
Rotimi Jacobs, Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Sections 19 and 45 of the Federal High Court Act.
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
