➥ CASE SUMMARY OF:
Scales Olatunji Ishola V. Federal Republic of Nigeria (CA/C/385C/2020, 12 Feb 2021)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Forum non conveniens;
Bail.
➥ CASE FACT/HISTORY
This appeal is against the interlocutory ruling of the Federal High Court, sitting in Uyo delivered on 9th November, 2020 by Hon. Justice A. A. Okeke refusing to admit the appellant herein on bail pending trial. At page 662 of the record of appeal, learned trial judge found as follows –
“Applicant failed to place sufficient facts before this Court to warrant the grant of this application. The nature of the charge does not tilt the balance of convenience in favour of the application. This application is refused and same is struck out.”
Dissatisfied with the above ruling, appellant appealed to this Court through a notice of appeal filed on 12/11/2020.
➥ ISSUE(S)
I. Whether the discretionary powers of the trial Court was exercised judicially and judiciously in refusing to admit the appellant on bail?
II. Whether the trial Court is forum non conveniens for the trial of the appellant herein in respect of the offences charged?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE TRIAL COURT EXERCISED PROPER DISCRETION IN NOT GRANTING BAIL
‘On the strength of the averment in paragraphs 21 of the counter affidavit above which reveals that intelligence report shows that the applicant/appellant was about fleeing Nigeria prior to his arrest which averment is nowhere denied or uncontroverted by the appellant, there is the likelihood that he will jump bail. Where it is believed that the applicant is likely to jump bail, bail will properly be refused by the Court. It must be borne in mind that a judicial discretion ought to be founded upon the facts and circumstances presented to the Court, from which it must draw a conclusion governed by law. In ESSIET v. A.G. OF AKWA IBOM STATE and ANOR (2015 LPELR – 24644 (CA), this Court per OYEWOLE, JCA said:-
“Without doubt the application filed by the appellant was one in respect of which the learned trial judge had to exercise judicial discretion. For that discretion to be judicial and judicious, it must involve a consideration of the materials placed before the Court. The materials did not just consist of the submission of counsel but also the facts adduced by parties.”
I cannot in the circumstance subscribe to the submission of the learned counsel for the appellant that the learned trial judge did not consider the affidavit evidence in support of the bail application and that the respondent has not adduced any credible evidence in proof of any of the circumstances provided in Section 162 of the Administration of Criminal Justice Act. And since there was attempt by the appellant to evade his trial, the learned trial judge acted judiciously and judicially in refusing to exercise his discretion in favour of the appellant. ’]
.
.
↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.
[BEING A CYBERCRIME OFFENCE, THE APPELLANT CAN BE TRIED AT ANY OF THE FEDERAL HIGH COURT
‘I have stated that counts 6 – 45 of the charge in question relates to cybercrimes which are computer oriented crimes involving computer and network. These types of offences are not constrained to a given location and thus its territorial or geographical limit is undeterminable. It is therefore not surprising that Section 50 (1) of the Cybercrime Act, 2015 confers jurisdiction on the Federal High Court regardless of the location where the offence is committed. The said Section 50 (1) of the Cybercrime Act, 2015 emphatically provides as follows:-
“50 (1) – The Federal High Court located in any part of Nigeria regardless of the location where the offence is committed shall have jurisdiction to try offences under this Act if committed –
(a) in Nigeria, or
(b) in a ship or aircraft registered in Nigeria or
(c) by a citizen or resident in Nigeria if the person’s conduct would also constitute an offence under a law of the country where the offence was committed, or
(d) Outside Nigeria, where –
(i) the victim of the offence is a citizen or resident of Nigeria, or
(ii) the alleged offender is in Nigeria and not extradited to any other country for prosecution.”’
‘It is also pertinent to note that from the contents of counts 6 – 45 of the charge, the appellant and his cohorts allegedly committed the offences in Nigeria using several emails to various victims worldwide. In the light of the above, the trial Court sitting at Uyo, Akwa Ibom State is uncontestably a forum conveniens for the trial of the appellant in respect of offences in counts 6 – 45 of the charge.’
‘From the above, it is clear that the offence(s) in counts 1-5 above are not stated to have been committed or occurred in any particular location in Nigeria and applying the principle enunciated by the Supreme Court in the case of MUHAMMAD DELE BELGORE v. FEDERAL REPUBLIC OF NIGERIA (supra); recourse has to be made to the proof of evidence in order to bridge the yawning gap. The proof of evidence in the case at hand includes petitions or complaints emanating from Norwegian and Danish National police. Part of the complaints read as follows:-
“On 4 May, 2018, the perpetrators contacted Monica Gulmoen of the Charity Association for providing Girls and Boys in Kabane with a Football pitch posing as former Norwegian Football Association President per Rarn Omedal. They asked for a transfer of EUR 48,350 to IBAN GB 74HBUK 4006213722119. The amount was transferred. The perpetrators of the fraud used the email address email office 01.com.”
Consequent to the above, the Norwegian Police requested the assistance of the EFCC to conduct a coordinated investigation to identify and arrest the perpetrators in Nigeria and to seize assets that can be confiscated for the Norwegian and/or Nigerian treasury. Also included in the proof of evidence is the EFCC internal memo showing that intelligence on some Nigerian Fraudsters have inflicted havoc and financial losses running into millions of dollars on businesses in Norway, Denmark, Finland and Austria involving a group lead by the appellant herein.
I have highlighted the complex nature of money laundering offences particularly as in this case where the methods allegedly employed involved international transactions. In contrast to the case of MUHAMMED DELE BELGORE v. F.R.N (Supra) where the sum of ₦450 Million Naira was disbursed to various persons in Ilorin without going through a financial institution, the allegations in counts 1-5 of the charge against the appellant and his cohorts reveals that they conspired and transferred proceeds of crimes into their various accounts in Nigeria. Thus, fixing these transactions that are not physical by their nature to a particular location in Nigeria is practically impossible. To that extent, the trial Federal High Court will undoubtedly be a forum convenience for the trial of the appellant.’]
.
.
.
✓ DECISION:
‘This appeal is moribund and it is hereby dismissed. Accordingly, the lower Court shall ensure giving accelerated hearing of the case in line with the Federal High Court (Criminal) Practice Direction, 2013.’
➥ FURTHER DICTA:
⦿ TERRITORIAL JURISDICTION TO DETERMINE A CASE
Turning back to territorial jurisdiction of the Court, it implies a geographical area within which the authority of the Court may be exercised and outside which the Court has no power to act. Jurisdiction, territorial or otherwise is statutory and is conferred on the Court by the law, creating it. Territorial jurisdiction means the jurisdiction which a Court may exercise over person residing or carrying on business within a defined area. In the context of criminal law, territorial jurisdiction is dependant on the enabling law setting out the jurisdiction of the Court against the accused person. In order to have jurisdiction, the Court must therefore be satisfied that the offence or crime is directly donated by the jurisdiction conferred on the Court in the enabling law. In other words, the Court cannot exercise jurisdiction where the offence is outside the enabling law. See ONWUDIWE v. FEDERAL REPUBLIC OF NIGERIA (2006) LPELR 2715 (SC), BAKKAT v. FEDERAL REPUBLIC OF NIGERIA (2013) LPELR – 22817 (CA), DARIYE v. F.R.N. (2015) LPELR – 24398 (SC). In GOLIT v. IGP (2020) LPERL – 50636 (SC), it was held that in determining whether a trial Court had territorial jurisdiction to hear and determine the case, the issue of venue is to be determined by the trial Court which should ascertain the identity the offence(s) charged and the elements of the offence as contained in the proof of evidence with a view to ascertaining whether any of the acts constituting the offence occurred in a particular place. — M. L. Shuaibu JCA.
⦿ IT IS RECOMMENDED THAT THE OFFENDER BE TRIED WHERE THE OFFENCE TOOK PLACE
Interpreting the provisions of Section 19(1) and 45 of the Federal High Court Act in the case of IBORI and ANOR v. F.R.N and ORS (2008) LPELR – 8370 (CA) this Court, per AUGIE JCA (as he then was) held the view that although the jurisdiction of the Federal High Court is one and nationwide, the Court is also divided into Judicial Divisions and where a crime is committed, such crime ought to be prosecuted in the judicial division of the Federal High Court in the state where any of the elements of the crime were allegedly committed, subject to the power of transfer contained in the Act. Also in the recent case of MUHAMMAD DELE BELGORE (supra), the Supreme Court held a similar view and went further to say that where there is a lacuna in the charge as regards the place where the offence took place, the Court is to look at the proof of evidence attached to the charge in order to ascertain the precise place where the offence (s) allegedly took place. — M. L. Shuaibu JCA.
⦿ THREE STAGES IN MONEY LAUNDERING
The methods used to launder proceeds of crime and other criminal activity though complex but it usually involves three stages namely, placement, layering and integration. — M. L. Shuaibu JCA.
⦿ THE CONTRACTUAL NATURE OF BAIL
The right of bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him from custody of the law and to entrust him to appear at his trial at a specific time and place. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction and or on acquittal of the accused. The contractual nature of bail is that before any person is released on bail he must execute, a bond for such sum of money as determined by either the Police or the Court on the condition that such a person must attend at the time and place mentioned therein until otherwise directed. See SULEMAN and ANOR v. C.O.P PLATEAU STATE (2008) LPELR – 3126 (SC). The main function of bail is to ensure the presence of the accused at trial. Thus, if there is any reason to believe that the accused is likely to jump bail, bail will properly be refused by the trial Court in exercise of its discretion in dealing with the application. As rightly posited the decision whether or not to grant bail on offences that are ordinarily bailable is a matter within the judicial discretion of the Court. A judicial discretion has to be exercised judiciously and judicially and the reason for the exercise of the discretion must be given. See DARLINTON v. F.R.N (2018)11 NWLR (prt 1629)152. Similarly, the Court in the exercise of its discretion, must only act on empherical facts or materials placed before it and not on extraneous or irrelevant matters. — M. L. Shuaibu JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Muhammed Lawal Shuaibu, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Gboyega Oyewole, SAN
⦿ FOR THE RESPONDENT(S)
Nwandu K. Ukoha, Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 162 of the Administration of Criminal Justice Act, 2015.
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
