➥ CASE SUMMARY OF:
Dr Joseph Nwobike SAN v. Federal Republic of Nigeria (2021) – SC
by PipAr Chima
Supreme Court – SC/CR/161/2020
➥ JUDGEMENT DELIVERED ON:
Monday the 20th Day of December 2021
➥ AREA(S) OF LAW
➥ NOTABLE DICTA
⦿ EFCC HAS POWER TO PROSECUTE FINANCIAL CRIMES
Indeed, the effect of the combined provisions of sections 6(b); 7(1)(a) & (2)(f) and 13(2) of the EFCC (Establishment) Act, leaves no doubt that the EFCC has the power to investigate, enforce and prosecute offenders for any offence, whether under the Act or any other statute, in so far as the offence relates to commission of economic and financial crimes. – Tijjani Abubakar, JSC. Nwobike v. FRN (2021)
⦿ WHERE WORDS ARE UNAMBIGUOUS
According to the canons of interpretation of statutes, it is a cardinal principle that, where the ordinary and plain meaning of words used are clear and unambiguous, effect must be given to those words in their natural and ordinary meaning or literal sense without resorting to any intrinsic aid. – Tijjani Abubakar, JSC. Nwobike v. FRN (2021)
⦿ “CORRUPT PRACTICES” AS USED IN THE EFCC ACT IS RESTRICTED TO FINANCIAL CRIMES
It suffices therefore to say that the words “corrupt malpractices” entail conduct that might or affect the honest and impartial exercise of a duty; encompassing a vicious and fraudulent intention to evade the prohibitions of the law; something against or forbidden by law; moral turpitude or exactly opposite of honesty involving intentional disregard of law from purely improper motives. To this extent therefore, I have given a careful consideration to the natural, ordinary, and plain interpretation of the expression “corrupt malpractices”, which is not defined under the EFCC (Establishment) Act, and with all due respect, find it difficult to accept that the literal interpretation is effective in discovering the intention of the legislature with respect to ascertaining the scope of the expression “any form of corrupt malpractices” used in section 46 of the EFCC (Establishment) Act. If the literal meaning is adopted, it means that the powers of the EFCC will be at large and open ended, because by that interpretation, every criminal and illicit activity committed will fall within the scope of “corrupt malpractices” and consequently be regarded as an economic and financial crime, which the EFCC will be empowered to investigate, so doing will make a pigmy of other legislations and render them barren and sterile, this is certainly not the intention of the legislature necessitating the establishment of the EFCC and enacting the Act. – Tijjani Abubakar, JSC. Nwobike v. FRN (2021)
⦿ WHEN THE COURT WILL APPLY “EJUSDEM GENERIS” RULE
The ejusdem generis rule is an interpretative one which the Court would apply, in an appropriate case, to confine the scope of general words which follow special words as used in a statute or document or Constitution within the genus of those general words. In the interpretation of statute therefore, general terms following particular ones apply only to such persons or things as are ejusdem generis with those understood from the language of the statute to be confined to the particular terms. The general words are therefore to be read as understanding only those things of the kind as that designated by the preceding particular words or expressions, unless there is something to show that a wider sense was intended by the legislature.
⦿ ISSUE REFORMULATED BY COURT MUST BE ROOTED IN THE GROUNDS OF APPEAL
I have no doubt at all, that a court has the inherent power, in the interest of justice, to reject, modify or re-frame issues distilled for the determination of a case before it. However, the exercise of this power is not open ended or limitless, the issue so formulated must be rooted in the grounds of appeal, the Court must ensure that any issue so modified, or re-formulated comes within the ambit of the complaint contained in the grounds of appeal. – Tijjani Abubakar, JSC. Nwobike v. FRN (2021)
⦿ COURT CANNOT CONSIDER AN ISSUE NOT PLACED BEFORE IT
The settled position of the law is that when an issue is not placed before the court for discourse, the Court has no business whatsoever delving into it and dealing with it. A court of law has no business whatsoever delving into issues that are not properly placed before it for resolution, a Court of law has no business being overgenerous and open-handed, dishing out unsolicited reliefs, a Court of law is neither father Christmas granting unsolicited reliefs, nor Knight errant looking for skirmishes all about the place, a Court of law as an impartial arbiter must confine its self to the reliefs sought and the issues before it submitted for resolution. – Tijjani Abubakar, JSC. Nwobike v. FRN (2021)
⦿ COURT REFORMULATING AN ISSUE MUST BE ROOTED IN THE GROUNDS OF APPEAL
It follows therefore, that when reformulating the issues crafted by the contending parties, as the issues in controversy, the Court of Appeal must ensure that such re-formulated issue(s) have foundation and are rooted in the grounds of appeal contained in the notice of appeal before it. The power of the Court of Appeal is limited to reformulating issues that are capable of addressing the grievance of an appellant, who has taken all necessary steps to ventilate his grievance against the decision of a trial court, the Court of appeal has no business engaging in crafting fancy and flowery issues for determination in the abstract, employing words that are catchy and tantalizing. – Tijjani Abubakar, JSC. Nwobike v. FRN (2021)
⦿ DECISION OF A COURT NOT APPEALED AGAINST IS BINDING
The law is settled that a decision of a Court of competent jurisdiction not appealed against remains valid, subsisting and binding on the parties and is presumed acceptable by them. It is also the law that where there is an appeal on some points only in a decision, the appeal stands or falls on those points appealed against only while the other points or decisions not appealed against remain valid, subsisting and unchallenged. – Tijjani Abubakar, JSC. Nwobike v. FRN (2021)
Dr Joseph Nwobike SAN
Federal Republic of Nigeria
➥ LEAD JUDGEMENT DELIVERED BY:
Tijjani Abubakar, JSC
⦿ FOR THE APPELLANT
– Kanu Agabi, SAN, CON.
⦿ FOR THE RESPONDENT
– Buhari, Esq.
➥ CASE HISTORY
The Appellant in this appeal was charged before the High Court of Lagos State presided over by R.I.B. Adebiyi, J on a 3rd amended 18 Counts Information dated and filed on the 27th day of December, 2017 titled (the “Amended Information”) for the offences of offering gratification to a public officer contrary to section 64(1) of the Criminal Law of Lagos State No. 11 of 2011 – Counts 1, 2, 4, 5, and 6; attempting to pervert the course of justice contrary to section 97(3) of the Criminal Law of Lagos State – Counts 3, 7 to 17; and making false information to an officer of the Economic and Crimes Commission (“EFCC”) contrary to section 39(2) of the Economic and Financial Crimes Commission (Establishment) Act, 2004 – Count 18. When the charge was read to the Appellant, he pleaded “not guilty” to all the counts. Trial commenced thereafter.
On the 30th day of April, 2018, the trial court delivered its judgment and found the Appellant not guilty of Counts 1, 2, 4, 5, 6 and 18 in connection with the offence of offering gratification to a public official; and making false information to an officer of the EFCC, he was consequently discharged and acquitted of those Counts. The Appellant was however found guilty and convicted of Counts 3, 7 to 17, to wit, attempting to pervert the course of justice, and consequently sentenced to thirty (30) days imprisonment on each count, terms of imprisonment to run concurrently. The Appellant became nettled by the decision of the trial Court.
Dissatisfied with the decision of the trial court, and therefore filed notice of appeal on the 8th day of June, 2018 containing fourteen (14) grounds of appeal. The Court of Appeal (Coram Ikyegh; Tukur; Tobi; JJCA) allowed Appellants appeal in part in a judgment delivered on the 19th day of December, 2019, setting aside the conviction and sentence of the Appellant in Counts 3, 12 and 14 but affirmed his conviction in Counts 7 to 11, 13, 15 to 17 of the Amended Information.
Still peeved by the decision of the Court of Appeal, (The lower Court) the Appellant further appealed to this court via notice of appeal dated the 10th day of February, 2020 but filed on the 11th day of February, 2020, containing eleven (11) grounds of appeal.
➥ ISSUE(S) & RESOLUTION
I. Whether, having regard to the provisions of sections 14 – 18 of the EFCC (Establishment) Act, 2004 and the decision in Emmanuel Ahmed vs. Federal Republic of Nigeria  13 NWLR (Pt. 1159) 536 at 552, the EFCC had any authority to investigate and prosecute the Appellant for the offence of attempting to pervert the course of justice charged in Counts 7, 8, 10, 11, 13, 15, 16 and 17 of the Amended Information and if not whether the trial court and court below had jurisdiction to try the Appellant or to affirm decision of the trial court.
RULING: IN APPELLANT’S FAVOUR.
I.A. In section 46 of the EFCC (Establishment) Act under consideration, the general words that call for interpretation are “any form of corrupt malpractices” following the particular words “… embezzlement, bribery, looting”. An application of the ejusdem generis rule to the interpretation of the words “any form of corrupt malpractices” does not lend credence to the position taken by the Respondent. Indeed, the words “any form of corrupt malpractices” must be construed within the context of the specific class which it follows, and must be confined to the particular class. In my humble view therefore, the legislature thought it proper and for right and good reasons, to place the general expression “any other form of corrupt practices” to come after the offences “embezzlement”, “bribery” and “looting” and same must be confined to such specific words and not to expand, extend or elongate it to accommodate any corrupt malpractices at large.
A fortiori, it must be pointed out, as the Learned Senior Counsel for the Appellant rightly argued and as conceded by the Respondent, that the test for ascertaining if a criminal conduct can be regarded as an economic and financial crime is such that must be a non-violent criminal and illicit activity committed with the objective of earning wealth. I do not think it will be safe to regard the offence of attempt to pervert the course of justice which the Appellant was convicted for, where it has not been shown that it was committed with the objective of earning wealth, and be regarded as an economic and financial crime, thereby vesting the power to investigate and prosecute in the Economic and Financial Crimes Commission.
I.B. Consequently, Counts 7 – 11, 13, 15 – 17 of the Amended Information have no foundation, and since the aforesaid counts are the only ones upon which the Appellant was convicted and sentenced, it follows therefore that the case of the prosecution was not erected on any pedestal whatsoever, it did not come before the Court initiated by due process of law; the trial court therefore lacked jurisdiction and ought to have declined jurisdiction. The law is well settled that, where a Court of law deals with a matter without jurisdiction, so doing amounts to embarking on a worthless exercise because no matter how brilliantly well the case is conducted it will be a complete nullity. It is the law that an order of Court made without jurisdiction is a nullity.
II. Whether the court below was right in affirming the conviction and sentence of the Appellant for the offence of attempt to pervert the course of justice under section 97(3) of the Criminal Law, having regard to the fact, as found by the learned trial judge (a finding against which the prosecution did not appeal) that section 97(3) of the Criminal Law does not define the offence charged and was therefore inconsistent with section 36(12) of the Constitution of the Federal Republic of Nigeria, 1999 (the “Constitution”) and therefore null and void.
II.A. Against the backdrop of the unchallenged reasoning and conclusion of the trial Court, that section 97(3) of the Criminal Law does not define the offence of perversion of justice for which the Appellant was charged, tried and convicted, unless it is shown that the offence is defined under any other written law, it follows therefore that the aforesaid provision offends the provisions of and is inconsistent with section 36(12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
II.B. Unfortunately, the Respondent who saw the prospects of its appeal drifting and deeming for failure to file cross appeal for the Respondent, could not paddle its application for extension of time to appeal to success, there was no cross-appeal against the decision of the trial court that the said provision did not define the offence for which the Appellant was charged, tried and convicted. Having found that the offence is not defined, the only logical inference the trial court was bound to make is that the aforesaid section is inconsistent with the provisions of Section 36(12) of the Constitution and refrain from fruitless evaluation and determination of the guilt of the Appellant on a charge founded on an offence which is not defined by law.
III.C. Before drawing the curtain here, I need to footnote a word of caution that the above conclusion, particularly on the constitutionality of section 97(3) of the Criminal Law, was reached based on the peculiar circumstance of the instant appeal, there is no appeal against the decision of the trial court on the constitutionality of section 97(3) of the trial court, this court cannot therefore consider and determine the question on the merit. As it stands therefore, there is no live issue on the constitutionality of the aforesaid section before this court and no pronouncement can be properly made on same. A valid cross appeal could have provided an opportunity for pronouncement on the merit.
IV.D. Be that as it may, having resolved that the EFCC does not have the power to prosecute the offences constituted in Counts 7 – 17 of the Amended Charge.and that, in the light of the decision of the trial court that section 97(3) of the Criminal Law of Lagos State. No. 11, 2011 does not define the manner of perversion of justice for which the Appellant may be held culpable, it follows that the Appellant cannot be tried and convicted on the aforesaid Counts 7 – 11, 13, 15 – 17 of the Amended Information and by necessary implication therefore, the conviction of the Appellant cannot be sustained. I find this point a convenient place to conclude the determination of this appeal.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
– Section 46 of the EFCC (Establishment) Act;
– Section 97(3) of the Criminal Law of Lagos State;
– Section 36(12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
➥ REFERENCED (CASE)
⦿ WHAT IS “CORRUPTION” & “MALPRACTICE” ?
In YUSUFU & ANOR V. OBASANJO & ORS (2003) LPELR -3540 (SC), this Court held that “corrupt practices” denote or can be said to connote and embrace certain perfidious and debauched activities which are felonious in character being redolent in their depravity and want of ethics. By the same token, in OLAREWAJU V. AFRIBANK (2001) LPELR – 2573 (SC), this Court adopted the definition of “malpractice” at pages 762 and 667 of the Chambers’ 20th Century Dictionary 1983 Edition, where it was defined as “an evil or improper practice; professional misconduct; treatment falling short of reasonable skill or care; illegal attempt of a person in position of trust to benefit himself at others loss.”
⦿ APPEAL STANDS OR FALL ON POINTS APPEALED AGAINST
MICHAEL V. THE STATE (2008) LPELR – 1874 (SC); where my lord MUSDAPHER (JSC, CJN) (of blessed memory) said as follows: “It is the law that where there is an appeal on some points only on a decision, the appeal stands or falls on those points appealed against only while the other points or decision not appealed remain unchallenged.”
➥ REFERENCED (OTHERS)