➥ CASE SUMMARY OF:
Federal Republic of Nigeria v. James Onanefe Ibori & Ors. (CA/B/61C/2010(2), 15 May 2014)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Summary trial;
Information;
Money laundering Act;
Drugs.
➥ CASE FACT/HISTORY
The genesis of the present appeal is traceable to 13/12/07. That was the day the Respondents were initially jointly arraigned before the court below, sitting at Kaduna Judicial Division, upon a 103 count charge. However, the Respondents objected to the jurisdiction of the Lower Court to try them upon the count charge in question. By the considered ruling thereof, the Lower Court, Coram Shuaibu, J; (as he then was), declined to transfer the case to the Asaba Judicial Division of the Lower Court, where the offences were alleged to have been committed by the Respondents. Dissatisfied with the said ruling, the Respondents appealed to the Kaduna Division of this court. At the conclusion of the hearing thereof, this court allowed the appeal, and accordingly made an order transferring the criminal trial from Kaduna to Asaba Judicial Division of the Lower Court. During the pendency of the aforementioned appeal, the Appellant amended the charge from the original 129 counts to 170 counts. Interestingly, however, on 28/07/09, the Respondents filed in the Lower Court a motion on notice seeking the following relief: Quashing all the 170 counts contained in the document titled Further Amended Charges filed by the prosecution in this matter and terminating the criminal proceedings connected therewith on the following grounds: (i) None of the counts disclose a prima facie case against any or all of the accused persons. (ii) The accused persons are not in any way linked to the offence of money laundering as charged by the prosecution. (iii) Constitutionally, the charges are incompetent as they constitute Delta State business or affairs of State which the Federal Government of Nigeria or any of its agencies such as the EFCC is incompetent to inquire into.
At the end of the hearing of the said motion, the Lower Court, Coram Awokulehin, J; delivered the vexed ruling on 17/12/09, thereby quashing the 170 counts charge, discharging and acquitting the Respondents.
The Appellant’s Notice of Appeal was dated 31/12/09, but filed on 08/01/10.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]
↪️ I. Whether in criminal trials before the Federal High Court same is by way of information and not summary trial?
RESOLUTION: IN APPELLANT’S FAVOUR.
[TRIAL IS BY SUMMARY TRIAL
‘Now, the enabling provisions for criminal trials is provided in the Federal High Court Act, CAP. Law of the Federation of Nigeria, 2004. Most especially, under Section 33 of the said Act, it’s provided, thus: 33. – (1) Subject to the provisions of this Section, criminal proceedings before the court shall be conducted substantially in accordance with the provisions of the Criminal Procedure Act and the provisions of that Act shall with such modifications as may be necessary to bring it into conformity with the provisions of this Act, have effect in respect of act, matters falling within the jurisdiction of the court. (2) Notwithstanding the generality of such section, all criminal causes or matters before the court shall be tried summarily.Invariably, the term information, denotes a formal criminal charge made by a prosecutor without a grand-jury indictment. Also termed bill of information. See BLACKS LAW DICTIONARY, 9th Edition, 2009 @ 849. Contrariwise, a charge denotes a formal accusation of an offense as a preliminary step to prosecution as in murder charge, et al. Also termed criminal charge. See BLACK’S LAW DICTIONARY (Supra) @ 265. The provisions of Section 33 (2) of the Federal High Court (Supra) are to the effect that – “Notwithstanding the generality of subsection (1) of this section all criminal cases or matters before the court shall be tried summarily.” Thus, by virtue of the combined provisions of Section 251 (2) of the 1999 Constitution (Supra) and Section 33(2) of the Federal High Court Act (Supra), the Lower Court has been eminently cloaked with the jurisdiction to try the offences as under the Miscellaneous Offences Act, CAP. M17 Laws of the Federation of Nigeria, 2004 and the Money Laundering (Prohibition) Act, 2004. And that these offences shall be tried summarily.’]
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↪️ II. Whether or not, in the interpretation of the provisions of Section 14 (1) of the Money Laundering (Prohibition) Acts, 2003 and 2004, the phrase “or any other crime or illegal act” is to be construed under the Ejusdem Generis Rule as restricted or limited to “illicit traffic in narcotic drugs or psychotropic substances” ?
RESOLUTION: IN APPELLANT’S FAVOUR.
[THE EJUSDEM GENERIS RULE DOES NOT APPLY
‘Most regrettably, I would want to believe that the Lower Court has failed to be rightly guided by the aptly authoritative decision in the case of SPDC v. FBIR (Supra). Having critically appraised the entirety of the provisions of the Money Laundering (Prohibition) Acts of 2003 and 2004 in question, I am of the considered view that the provisions of Section 14(1) are very clear and rather unequivocal. Arguably, by virtue of the two salient phrases – “Or any other crimes;” and “Any illegal act;” as couched in Section 14 (1) of the extant Money Laundering (Prohibition) Act, 2004 (Supra), it is so obvious that the intendment or object inherent therein is not (merely) to the criminality of illicit trafficking in narcotic drugs and psychotropic substances as was erroneously assumed by the Lower Court. As aptly postulated by the Appellant’s learned senior counsel, the words “or” and “other” couched in the said phrases in Section 14 (1) (a) (supra) are disjunctive. See Section 18(1) of the Interpretation Act CAP. 123 Laws of the Federation of Nigeria, 2004, thus: “18(1) – …. (3) the word ‘or’ and the word ‘other’ shall in any enactment, be construed disjunctively and not as implying similarity.”’
THE LITERAL MEANING IS TO BE APPLIED
‘Undoubtedly, the provisions of Sections 14(1), 16 and 17 of the Money Laundering (Prohibition) Act (Supra) are not, by any stretch of imagination, ambiguous. They are clear and unequivocal in their meanings. It’s a well established cardinal of interpretation, that in construing the provisions of a statute, it behoves the court to strive to discover the intention of the legislature therein. Where the words used in a statute are crystally clear and rather unambiguous, the court has a duty (without any option than) to accord them their plain, ordinary, and grammatical meanings. See ABIOYE v. YAKUBU (1991) LPELR – 43 (SC) @ 111 paragraphs B – D per Karibi-whyte, JSC; ADEJUMO v. MIL GOV. LAGOS STATE (1972) 5 SC 87; UGWU v. ARARUME (2007) 12 NWLR (Pt. 1048) 367; (2007) LPELR – 3329 (SC).’]
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III. Whether or not from the statements and documents accompanying the counts on charge sheet, there is a prima facie case linking any or all the Respondents (Accused Persons) to any or all the offences alleged against them?
RESOLUTION: IN APPELLANT’S FAVOUR.
[ACCUSED IS TO APPLY TO COURT FOR MORE INFORMATION RELATING TO THE CHARGE
‘Where the accused is not satisfied with the information attached to the charge in a summary trials he is expected to apply to the court. To order the prosecution to provide more facts to the accused person is entirely in the courts discretion. See Gaji v. State 1974- 1975 9 NSCC p.294. The learned trial Judge found that what was attached to the charge(s) was enough for the accused persons to prepare for their defence. Notwithstanding this finding the learned trial judge proceeded to order that the prosecution (respondent) files a proof of evidence. This was done.’
‘Against the backdrop of the analysis of the statements of witnesses and the various documents (contained in the five volumes referred to above) to be relied upon by the prosecution at the trial, there is a prima facie evidence to the effect inter alia, that lodgements were made into: (1) the personal Bank Account of the 1st Appellant at GT Bank PLC Asaba. (2) Prof Utuama’s Prime Chambers account at Zenith Bank, Asaba, which said account was opened in 2000 while he was already in public office as Attorney-General and as the sole signatory thereof to facilitate withdrawal from the said lodgements; (3) (a) 2nd Accused Persons – (i) Silhouette Travels and Tours Ltd’s Account Zenith Bank Lagos (ii) Personal Account with Oceanic Bank, Lagos, and (iii) Saigon Nig, Ltd’s Account with Oceanic Bank, Lagos. (b) the account of 4th Appellant’s Account whose 9,999 shares out of 10,000 shares allegedly were inherited from the 1st Appellant by the 4th Appellant and white Mrs. Pogoson who held no single share was the sole signatory thereof. (c) the 5th Appellant’s Account to which the 3rd Appellant is the sole signatory thereof even though he holds no single share. The beneficiaries of all these lodgements, most particularly the 2nd to 6th Respondents, allegedly facilitated the transfers of various sums from these accounts to foreign Banks to sustain the purchase of properties using companies in which the 1st Respondent and members of the immediate family have interests. Thus, from the statements of witnesses and the various mind boggling documents accompanying the 170 counts charge, there is every cogent reason for me to believe that a prima facie case has been established linking the Respondents to any or all the offences that were alleged to have been committed by them.’
‘It needs to be reiterated that the exercise of discretion by a court is not merely as a matter of course. It’s trite, that a discretionary power must be exercised by the court not only judicially, but also judiciously. In the instant case, it’s so crystally obvious that the Lower Court was in error to have made a finding of fact with far-reaching conclusive effect, as if a formal trial had been conducted upon testimonies on oath and relevant documentary evidence admitted. With utmost possible deference, that is very wrong. And I so hold. See UWAZURUIKE v. STATE (Supra) @ 18. Having due regard to the statements of witnesses and the various mind boggling documents on record, I agree with the Appellant’s submission, that the Lower Court was wrong to have made a finding of fact with conclusive effect as if a formal trial had been conducted upon testimonies on oath and relevant documentary evidence tendered and admitted. There is every cogent reason for me to say that the lower court, with due possible deference has failed to keep the vision thereof unclouded by the dust of conflict. Yet, it’s trite that though Justice may symbolically be painted blind, she ought to be blind indeed only to fear, favour, affection or ill-will (prejudice), but clear to see which way lies the truth, and the less dust there is the better. See JONES v. NATIONAL BOARD (1957) 2 QB 55 per Lord Denning, MR.’]
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↪️ IV. Whether or not at the stage of the proceedings before the commencement of trial in question, the Lower Court was right to have made the findings of fact to the effect that the payments made to the accounts of the 2nd Respondent from the Delta State funds were legitimate payments for executed contracts?
RESOLUTION: IN APPELLANT’S FAVOUR.
[‘It is my considered view that having resolved issue No. 2 in the affirmative, there is no gainsaying the fact that the answer to issue No. 3 must equally be in the affirmative.’]
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✓ DECISION:
‘Hence, having resolved all the four issues in favour of the Appellant, against the Respondents, there is no gainsaying the fact that the appeal is grossly meritorious, and it’s hereby allowed by me. The Ruling of the Federal High Court, holden at Asaba, Delta State, which was delivered by Mercel I. Awokulehin, J. on December 17, 2009 is hereby set aside. Consequently, the Suit No.FHC/ASB/1C/2009 involving the parties herein is hereby remitted to the Federal High Court for reassignment by the Chief Judge for trial before another Judge.’
➥ FURTHER DICTA:
⦿ WHAT IS AN INFORMATION IN CRIMINAL CASES
Instructively, an information is a comprehensive document which contains certain vital information regarding the following: (a) the charge, statement and particulars of offence; (b) the statement of the prosecution witnesses (c) the statement of the accused person; (d) list of exhibits, and (e) all other relevant documents that the prosecution intends to rely upon at the trial. See UWAZURUIKE v. AG. FED. (Supra) per Rhodes-Vivour, JSC @ 17 paragraphs A – F. — I.B.M. Saulawa JCA.
⦿ THE TERM EJUSDEM GENERIS RULE
The term Ejusdem Generis is a Latin derivative, literally meaning of the same kind, class [or league]. Etymologically, the term Ejusdem Generis denotes a canon of construction (interpretation) holding that when a general word or phrase follows a list of specific, the general word or phrase will be interpreted to include only items of the same class as those listed. As for instance, in the phrase ‘horses, cattle, sheep, pigs, goats, or any other farm animals,’ the general language or any other farm animals – notwithstanding its apparent breadth – would probably be held to include only four-legged, hoofed mammals typically found on farms. Thus, in the circumstance, chickens, turkeys and all other species of birds stand to be so excluded. It may be pertinent to say, at this point in time, that the Ejusdem Generis Rule is often referred to in contradistinction to the Latin doctrine of Expressio Unius est exclusion alterius: a canon of construction denoting that to express (or include) one thing implies the exclusion of the other, or of the alternative. E.g., the rule that “each citizen is entitled to vote,” naturally implies that non citizens are not entitled to vote. See BLACKS’S LAW DICTIONARY, 9th Edition 2009 @ 594 and 661. — I.B.M. Saulawa JCA.
⦿ APPLICATION IF THE EJUSDEM GENERIS RULE
The Ejusdem Generis Rule has been a subject of judicial pronouncement in a plethora of authorities. Most particularly, in the case of EHUWA v. OSIE (2006) 18 NWLR (Pt.1012) 544, the Supreme Court held, inter alia, that the Ejusdem Generis rule simply means that in interpreting the provisions of a statute general words which follow particular and specific words of the same nature as themselves take their meaning from those specific words. See also BUHARI v. YUSUF (2003) 14 NWLR (Pt.841) 446 @ 536 paragraphs B – D. However, it’s pertinent to reiterate that the application of the Ejusdem Generis Rule, is not as a matter of course; not automatic. The court is required to exercise an extra caution, most especially in view of the fact that it’s merely a presumption in the absence of other indications of the intention of the legislature. Thus, in essence, there must be a distinct genus (category) before the Ejusdem Generis Rule can be invoked. See SPDC v. FBIR (1996) 8 NWLR (Pt. 466) 256 @ 290 paragraphs; ANDERSON v. ANDERSON (1895) 1 QB 749 @ 753 and 755; CRAIES ON STATUTE LAW 7th edition @ 181. — I.B.M. Saulawa JCA.
⦿ THE EJUSDEM GENERIS RULE IS A MERE PRESUMPTION
As alluded to above, the application of the rule of Ejusdem Generis is neither at large, nor merely as a matter of course. It ought to be applied by the court with utmost circumspection. It must not be overstretched or pushed too far beyond reasonable tolerable limit. As authoritatively held by the Supreme Court It is wrong to treat it (the rule of Ejusdem Generis) as if it is automatically applicable since it is a mere presumption in the absence of other indications of the intention of the legislative… The modern tendency of the law is to attenuate the application of the rule… There must be a distinct genus or category before the rule of Ejusdem Generis can be invoked. See SPDC v. FBIR (Supra) @ 290 paragraphs G – H; See also ANDERSON v. ANDERSON (Supra); CRAIES ON STATUTE LAW, 7th Edition @ 181, cited with approval in SPDC v. FBIR (Supra). — I.B.M. Saulawa JCA.
⦿ THE DISJUNCTIVE PARTICLE ‘OR’
Inarguably, it’s an established principle, that a disjunctive particle generally expresses or marks an alternative in a statute. It indicates or provides a choice (option) of one among two or more things. Thus, the disjunctive particle (‘or’, ‘other’ as in the instant case), prominently plays a functional role depicting or showing an alternative between..different or unlike things. See INAKOJU v. ADELEKE (2007) 4 NWLR (Pt.1025) 423 @ 612 paragraph B – C per NikiTobi, JSC. — I.B.M. Saulawa JCA.
⦿ SIDE NOTES IN STATUTES
Indeed, it is a well settled fundamental principle, that although explanatory (side) notes to statutes are generally not considered as aids to interpretation of statutes, nonetheless, it’s permissible for the court to consider the general purpose and mischief at which the statute is aimed with the explanatory or side note in mind. See CHANDLER v. DPP (1964) AC 763 @ 789 per Lord Reid; STEPHEN v. CRUCKFIEL RURAL DISTRICT COUNCIL (1960) 2 QB 373 @ 383 per UPJOHN LJ; RUPERT CROSS; STATUTORY INTERPRETATION 1st Edition (1981) (Reprint) @ 113, cited with approval by the Supreme Court in UWAIFO v. AG. BENDEL (1982) NSCC 221 per Idigbe, JSC @ 242. — I.B.M. Saulawa JCA.
⦿ WHERE CHARGE/INFORMATION DOES NOT DISCLOSE PRIMA FACIE CASE AGAINST ACCUSED, IT MUST BE QUASHED
It is a trite fundamental principle, that if at the commencement of a prosecution of a charge or information filed by the prosecution, the information does not disclose facts supporting prima facie case against the accused person, the charge must be quashed and the accused shall be discharged. See ABACHA v. STATE (2002) 5 NWLR (Pt. 767) 638; UWAZURUIKE v. AG. FEDERATION (Supra) per Mohammed, JSC @ 22 paragraphs D – F; IKOMI v. STATE (1986) NWLR (Pt. 28) 340 @ 387 paragraph F 358 paragraph H; 374 paragraphs C – D … It is an established principle, that an indictment or charge may not be quashed merely on the ground that it’s doubtful that the prosecution could secure a conviction against the accused person. All that is required of the trial court is to satisfy itself as to whether the evidence of the prosecution discloses a prima facie case, no matter how weak, against the accused person. See IKOMI v. STATE (1986) NWLR (Pt. 28) 340 @ 375 paragraph B; 371 – 372 paragraphs H – A per Aniagolu, JSC (of blessed memory); (1986) LPELR – 1482 (SC). — I.B.M. Saulawa JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Ibrahim Mohammed Musa Saulawa, JCA.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Ibrahim Isiyaku, SAN.
⦿ FOR THE RESPONDENT(S)
J.B. Dauda, SAN.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 14(1)(a) of the Money Laundering (Prohibition) Act, 2004.
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
