(2016) LPELR-41455(CA)

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1 FRN v. ATUCHE & ORS CITATION: ADZIRA GANA MSHELIA In the Court of Appeal In the Lagos Judicial Division Holden at Lagos ON FRIDAY, 23RD SEPTEMBER, 2016 Suit No: CA/L/997C/15 Before Their Lordships: MASSOUD ABDULRAHMAN OREDOLA ISAIAH OLUFEMI AKEJU OBIETONBARA O. DANIEL-KALIO RIDWAN MAIWADA ABDULLAHI FEDERAL REPUBLIC OF NIGERIA 1. MR. FRANCIS ATUCHE 2. MRS ELIZABETH ATUCHE 3. MR. UGO ANYANWU Between And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. COURT - JURISDICTION: Essential Ingredients for the exercise of jurisdiction of a court "Now, it is settled law that the essential elements for the exercise of jurisdiction by a Court are that - (a) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction. (b) The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu vs. Nkemdilim (1962) 2 SCNLR 341. Osagie vs Odi (No.1) (1990) 3 NWLR part 137 p.130."per DANIEL- KALIO, J.C.A. (Pp , Paras. D-A) - read in context

3 2. COURT - JURISDICTION: Effect of a court hearing a matter where it has no jurisdiction "Now on the consequences of lack of jurisdiction by a Court, Niki Tobi JCA (as he then was) stated thus in the case of Kotoye v. Saraki (1993) 5 NWLR part 296 p.710 at p 724: "Once it is shown... that the Court has no jurisdiction or lacks jurisdiction, the prop or foundation of the case is not only shaken but entirely broken and beyond salvage in its existing legal content. The case crumbles. In effect, there is no case before the court for adjudication. The parties cannot be heard on the merits of the matter. That is the end of the litigation unless the jurisdictional problem is solved (if it can be solved) or the action filed in a Court of competent jurisdiction, in which case, it is resuscitated and tried de novo." Having held that it had no jurisdiction in the matter based on the decision of the Court of Appeal in Okey v FRN, the lower Court could not go on to consider counts The proper thing to do was to put an end to the matter before it. It will be odd when a party is over and the music has stopped, to see anyone still dancing on the dancing floor. Once the Court has no jurisdiction, it is game over in that particular case." Per DANIEL-KALIO, J.C.A. (Pp , Paras. F-E) - read in context

4 3. JURISDICTION - JURISDICTION OF THE STATE HIGH COURT: Extent of the criminal jurisdiction of the High Court of a State "With the oven fresh judgment of the Supreme Court in Federal Republic of Nigeria v. Okey Nwosu and 4 Ors in SC.74/2014, SC.73/2014 and SC.75/2014 delivered on the 1st day of July 2016, we can confidently state that this issue has been firmly resolved and laid to rest. In its judgment, the Supreme Court stated thus: "The lower Court's judgment that the trial Court has lost its jurisdiction to the Federal High Court on the basis of the latters exclusive jurisdiction under Section 251(1) of the 1999 Constitution is therefore perverse. It is a decision that neither draws from the evidence on record nor from a correct construction of Section 251(3) of the Constitution... The truth is that stealing is a matter which falls within the legislative competence of the Lagos State House of Assembly and having been legislated upon, the trial Court retains the jurisdiction of trying the 1st Respondent." (See at page 69 of the judgment).?it is noteworthy that the first issue submitted before the Supreme Court for determination in the above case is 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 whether the High Court of Lagos State had no jurisdiction to entertain same when such an issue was neither raised nor placed before the Court of Appeal by either of the parties. With the judgment of the Supreme Court, it seems to me that there is no more room for quibbling or to split hairs over the jurisdiction of the State High Court in the matter."per DANIEL-KALIO, J.C.A. (Pp , Paras. B-C) - read in context

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6 OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the High Court of Lagos State (the lower Court) coram Justice L.B. Lawal-Akapo delivered on the 22nd day of June There were two applications filed in that Court which the Court considered before arriving at its Ruling. The first was a Motion on Notice filed by the 1st and 2nd Respondents in this appeal who were the 1st and 2nd Defendants/Applicants. The motion prayed the lower Court for the following: "1. An order that on the authority of the decision of the Court of Appeal in CA/L/601/11 Okey Nwosu v Federal Republic of Nigeria & 3 Ors delivered on 21st November, 2013, this Court lacks jurisdiction to continue to entertain this criminal charge. 2. An order dismissing the criminal charge; 3. And for such further Order(s) as this honourable Court may deem fit to make in the circumstances." The second application considered by the lower Court before it arrived at its Ruling was a Notice of Preliminary Objection dated 3rd December, In that application, the Appellant in this appeal which was the 1

7 Complainant/objector at the lower Court, sought an order dismissing the criminal charge. After hearing Chief Anthony idigbe SAN on the motion on notice and Mr. Kemi Pinheiro SAN for the Respondents and after also considering the Preliminary Objection argued by Mr. Kemi Pinheiro SAN and also after considering the offences against the Defendants Francis Atuche, Mrs Elizabeth Atuche and Mr. Ugo Anyanwu, the lower Court came to the following two conclusions summarized as follows: 1. On the motion on notice, the Court held that it was bound by the decision of the Court of Appeal in the case of Dr. Erastus Akingbola v FRN delivered on 31st December, 2014 to the effect that where allegations of purchase, sale or dealing in shares and stocks are made, it is the Federal High Court as opposed to a State High Court that has jurisdiction over the matter pursuant to the provisions of Section 251(1), (g) and (h) of the 1999 Constitution as amended. 2. On the preliminary objection, the Court held that the subsisting order of the Court of Appeal in Appeal No. CA/L/1082/2013 and CA/L/1083/13 Elizabeth Atuche v. FRN and Francis Atuche v FRN respectively knocked 2

8 the bottom out of all the grounds canvassed in the Notice of Objection. Based on the conclusions summarized above, the lower Court decided that the motion on notice had merit and consequently struck out the charge against Francis Atuche, Elizabeth Atuche and Ugo Anyanwu and discharged them. The Court also dismissed the preliminary objection. Dissatisfied with the decision of the lower Court, the Appellant in a Notice of Appeal dated 13/7/15 and filed on 16/7/15 challenged it on 9 grounds, All the parties filed and exchanged Briefs of Argument. The Appellant's Brief of Argument dated 23/10/15 was filed on the same date. The Appellant also filed Reply Briefs in response to the Briefs of the Respondents. The Appellant's Reply Brief to the 3rd Respondent's Brief of Argument was dated and filed on 2/3/16. Its Reply Brief to the 1st and 2nd Respondents Amended Brief of Argument was dated 22/4/16 and filed on 26/4/16. The Appellant's Brief of Argument and its said Reply Briefs of Arguments were prepared by Mr. Kemi Pinheiro SAN. The 1st and 2nd Respondents Amended Brief of Argument relevant to this appeal, was filed on 14/4/16. It was deemed 3

9 properly filed and served on 15/4/16. The Brief was submitted by Chief Anthony ldigbe SAN. The 3rd Respondent's Brief of Argument was submitted by Sylva Ogwemoh SAN. All three Senior Advocates of Nigeria adopted their respective Briefs on 12/7/16. It is necessary to state here that the appeal initially came up before us for hearing on 4/5/16. On that date, the Learned Senior Advocate of Nigeria for the Appellant drew our attention to the fact that there was an appeal at the Supreme Court against the judgment of this Court in Appeal No. CA/L/601/11 delivered on 21/11/13 and that the outcome of that appeal was likely to substantially resolve the issues in the present appeal before us. The Learned Senior Counsel argued that the appeal has been heard by the Supreme Court and judgment in the appeal reserved. Chief Anthony Idigbe SAN and Sylva Ogwemoh SAN confirmed that there was indeed such an appeal before the Supreme Court. All the learned senior counsel agreed to an adjournment to await the outcome of that appeal. Consequently, the matter was adjourned by us to 12/7/2016. The awaited judgment of the Supreme Court has since been delivered. It was 4

10 delivered on the 1st of July We shall refer to that judgment in the course of this judgment. Out of the nine grounds of appeal, the Appellant distilled four issues for determination. The issues are: 1. Whether the honourable lower Court was right to quash counts 1-10 of the amended Information against the Respondents notwithstanding the admission of the 1st and 2nd Respondents Counsel that the case of CA/L/601/2011 Okey Nwosu v Federal Republic of Nigeria was inapplicable to counts 1 10 and the holding of the lower Court that counts 1-10 were perfectly within the Criminal Code Law of Lagos State. 2. Whether the honourable lower Court was right to decline jurisdiction and hold that it was bound by the cases of CA/L/601/2011 Okey Nwosu v Federal Republic of Nigeria and CA/L/490/2014 Akingbola v Federal Republic of Nigeria notwithstanding the glaring dissimilarities between those decisions and the case before it and most importantly the decisions in Ehindero v Federal Republic of Nigeria, Sebastian Adigwe v Federal Republic of Nigeria and COP v Abass and the express provision of Section 251(3) of the Constitution of the Federal 5

11 Republic of Nigeria Whether in the absence of any application by the 3rd Respondent to have counts 1-24 and 26 of the amended Information quashed against him, the lower Court was right to proceed to strike out the charges against the 3rd Respondent. 4. Whether the Appellant's Notice of Preliminary Objection dated the 3rd of December, 2013 had any bearing whatsoever with the decision in Appeals Nos. CA/L/1082/2013 and CA/L/1083/2013 If no: Whether the lower Court was right to dismiss the Appellant's notice of preliminary objection without giving reasons. On their part, the 1st and 2nd Respondents in their Amended Brief of Argument, identified the following three issues for determination, viz: 1. Whether the lower Court erred in law by holding that the facts and decision of the Court of Appeal in the case of Okey Nwosu v. Federal Republic of Nigeria in CA/L/601/2011 delivered on the 21st day of November, 2013 and Akingbola v. Federal Republic of Nigeria in CA/L/490/2014 delivered on the 31st day of December 2014 were similar and applicable to the instant case. 2. Whether the lower Court was right to have dismissed

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13 the entire charges against the Respondents. 3. Whether owing to the ruling of this Honourable Court in CA/L/1082/2013 and CA/L/1083/2013 the Appellant's Notice of Preliminary Objection dated 3/12/13 had become redundant and spent or whether the lower Court was right to have dismissed the said Notice of Preliminary Objection in the circumstances. In his Brief of Argument the 3rd Respondent also formulated three issues for determination. They are: 1. Was the learned trial judge of the High Court of Lagos State right in applying the decisions of the Court of Appeal in Okey Nwosu v. Federal Republic of Nigeria in CA/L/601/2011 delivered on the 21st November, 2013 and Akingbola v. Federal Republic of Nigeria in CA/L/490/2014 delivered on the 31st December, 2014 to strike out the charge against the Respondents at the High Court of Lagos State for want of jurisdiction on the part of the High Court of Lagos State? 2. Was the learned trial judge of the High Court of Lagos State right to have proceeded to strike out counts 1-24 and 26 of the Amended Information dated 1st June, 2011 against the 3rd Respondent on the application of the 1st and 2nd 7

14 Respondents dated 27th November, 2013? 3. Did the learned trial judge of the High Court of Lagos State dismiss the Appellant's Preliminary Objection dated 3rd December, 2013 which was heard together with the 1st and 2nd Respondents' Motion of 27th November 2013 without giving reasons for the dismissal? Although all the issues formulated by all the learned senior counsel flow from the grounds of appeal in the Notice of Appeal, they were differently framed to suit their respective styles. I will adopt the issues as formulated by the Appellant for the purpose of determining this appeal. In arguing issue 1, Mr. Kemi Pinheiro SAN referred us to the Motion on Notice of the 1st and 2nd Respondents dated 27/11/15. (See at page of the Record of Appeal). Learned Senior Counsel drew our attention to ground 1 of the Motion on Notice and contended that the 1st and 2nd Respondents admitted that the subject matter of the amended Information revolved around the issue of acquisition of shares as disclosed in counts 11,22,23,24,25,26 and 27 of the charge. He contended that in their written address at the lower Court, the 1st and 2nd Respondents stated 8

15 that counts 1, 3 and 9 alleged that the 1st and 3rd defendants (the 1st and 3rd Respondents in this appeal) conspired to commit the offence of stealing sums of money and that count 2, 4 and 10 against the said 1st and 3rd defendants (1st and 3rd respondents in this appeal) were also about stealing sums of money. Ditto for counts 5 and 7 and counts 6 and 8. It was submitted that from the written address of the 1st and 3rd respondents at the lower Court, the 1st and 3rd Respondents admitted that counts 1-10 of the amended Information had nothing whatsoever to do with Capital Market Issues and consequently, the contention by them that counts 1-10 of the amended Information relates to Capital Market Issues ought not to be taken seriously by this Court. The Learned Senior Advocate of Nigeria contended that the lower Court in its Ruling of 22nd June, 2015 agreed with the contention of the Appellant's Learned Counsel that counts 1-10 were not challenged by the 1st and 2nd Respondents. In spite of that view, the lower Court it was submitted, still proceeded to strike out the entire counts in the amended Information. The Learned Senior Advocate submitted 9

16 that in a charge that has multiple counts, each count is independent of the other counts and that an accused person pleads to each count distinctly and separately. It was submitted that it is not the law that if an accused person is discharged on one count, he cannot be convicted on another count which has been proved. The case of Ajise v. FRN (2011) 6 NWLR part 1244 p.465 at 476 was cited in support. Mr. Kemi Pinheiro SAN submitted that since as admitted by the 1st and 3rd Respondents, counts 1-10 have no bearing with Capital Market Issues, the counts were within the ambit of the Criminal Code of Lagos State and therefore the lower Court was wrong to have struck them out. He argued that striking out the said counts 1-10 also violates the provision of Section 153 of the Administration of Criminal Justice Law of Lagos State, In his argument on issue 1, Chief Anthony Idigbe SAN for the 1st and 2nd Respondents submitted that one of the issues before the lower Court as well as this Court in the case of Okey Nwosu vs FRN and Akingbola vs FRN was the issue of the jurisdictional competence of the lower Court to determine the charges before it. The Learned 10

17 Senior Advocate of Nigeria submitted that the lower Court as well as this Court in both Okey Nwosu vs. FRN and Akingbola vs. FRN came to the conclusion that the Lagos State High Court lacked jurisdiction to determine the charges and therefore dismissed the charges for want of jurisdiction. Chief Anthony Idigbe SAN also submitted that counts 1-10 relate to matters covered by the Companies and Allied Matters Act thereby giving the Federal High Court exclusive jurisdiction. On issue 1 Sylva Ogwemoh SAN for the 3rd Respondent submitted that following the decision of this Court in Okey Nwosu vs. FRN and Akinabola vs. FRN the High Court of Lagos State no longer has jurisdiction to hear and determine any Criminal charge that relates to the acquisition of Shares, Capital Issues and Banking. He contended that by the decision of this Court in those cases, only the Federal High Court has jurisdiction to hear and determine Criminal charges that relate to Shares, Capital Issues and Banking. The Learned Senior Advocate of Nigeria submitted that where an objection to the jurisdiction of a Court is raised by a party and same is upheld by the Court, any 11

18 determination of any further issue by the Court becomes otiose, impossible and unnecessary. An action in which a Court has pronounced that it has no jurisdiction, the learned senior counsel contended, cannot remain on the cause list and must be struck out. We were referred to page of Volume 1 of the Record of Appeal where the lower Court was prayed not to continue to entertain the Criminal charge in view of the decision of the Court of Appeal in Appeal No. CA/L/601/2011 Okey Nwosu v FRN & 3 Ors. delivered on 21/11/13. Now on the 1st day of June 2011, the Criminal Division of the High Court of Lagos State was informed by the Executive Chairman of the Economic and Financial Crimes Commission (EFCC) through an amended Information of that date that Mr. Francis Atuche, Mrs Elizabeth Atuche and Mr. Ugo Anyanwu were charged with several offences of conspiracy to steal and stealing. The Information had 27 counts. The argument of Mr. Kemi Pinheiro SAN is that counts 1-10 of the amended Information have nothing to do with Capital Market Issues. It was his contention that even the learned senior counsel of the 1st and 2nd Respondents agreed that 12

19 that was the case. In spite of that, the entire counts 1-27 were struck out by the lower Court. It was his argument that each charge is separate and distinct and consequently, the lower Court ought not to have struck out all the counts. Chief Idigbe SAN and Mr. Ogwemoh SAN were of the view that the case of Okey Nwosu vs FRN and that of Akingbola vs FRN decided by this Court held that the Lagos State High Court had no jurisdiction to entertain the charges and therefore the lower Court did the right thing when it struck out all the charges including counts 1-10 which in any case relate to matters covered by the Companies and Allied Matter Act. Now, it is settled law that the essential elements for the exercise of jurisdiction by a Court are that - (a) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction. (b) The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu vs. Nkemdilim (1962) 2 SCNLR 341. Osagie vs Odi (No.1) (1990) 3 NWLR part

20 p.130. At page 27 of the Additional Record of Appeal, the lower Court in its Ruling of 22/6/15 stated thus: "In the course of argument, learned counsel to the Respondents Mr. Kemi Pinheiro SAN submitted that the allegation that stolen money was used in the purchase of Shares and Stocks was not contained in counts He further contended that these counts (i.e 1-10) are perfectly within the ambit of the Criminal Code Law of Lagos State. The submission is very correct. But the matter goes beyond that..." From the above statement of the Court, it is clear that the lower Court agreed that counts 1-10 were within the ambit of the Criminal Code Law of Lagos State. The statement of the Court can be taken to be an endorsement of the view that as it relates to those counts, the High Court of Lagos State has the requisite jurisdiction. But the lower Court was quick to put in a caution. It stated that the matter went beyond that, meaning that it could not jump into assuming jurisdiction just because counts 1-10 were within the ambit of the Criminal Code Law of Lagos State. What I understand the Court as saying by putting in that caution is that 14

21 there are features in the case which prevented it from exercising jurisdiction. The lower Court went on to explain the hamstring or problem or constraint that prevented its assumption of jurisdiction. At the same page 27 of the Additional Record of Appeal, it stated thus: "This case falls squarely within the prescient (sic) or purview of the decision of the Court of Appeal in Okey Nwosu." In other words, the Court was saying that the decision of the Court of Appeal in Okey Nwosu's case had prevented it from exercising whatever jurisdiction it might have had in determining counts The Okey Nwosu decision was therefore the feature in the case that prevented it from exercising jurisdiction. The lower Court was therefore absolutely right in consonance with the time honoured decision in Madukolu v. Nkemdilim (supra) not to exercise jurisdiction in respect of counts 1-10 and instead strike out all the counts in the charge. When it comes to jurisdiction, a Court cannot cherry pick. It either has jurisdiction, or it does not have it. In the case before it, the lower Court was simply following the decision of the Court of Appeal, which it was bound to 15

22 follow under the doctrine of stare decisis in coming to the conclusion that it had no jurisdiction. It had no choice in the matter. I must say that in view of the judgment of the Supreme Court in SC.74/2014, SC.73/2014 and SC.75/2014 between The Federal Republic of Nigeria v. Okey Nwosu & 3 Ors. delivered on the 1st day of July, 2016, issue 1 is largely academic. This is because the Supreme Court has held in that case that the Lagos State High Court has jurisdiction in a case like the present one. I now turn to consider issue 2 which has to do with whether the lower Court was right to have declined jurisdiction having considered itself bound by the decisions of this Court in Okey Nwosu v FRN CA/L/601/2011 and Akingbola v. FRN CA/L/490/2014. On this issue Kemi Pinheiro SAN submitted that the foundation upon which the 1st and 2nd Respondents sought to quash the 27 count amended Information was the decision of this Court in Okey Nwosu v FRN delivered on 21/11/13. It was contended that the lower Court was not bound by that decision since the facts in that case were not on all fours with the facts in the present case. It was contended that nowhere in 16

23 the 27 count charge can it be inferred that the 1st and 2nd Respondents or the 3rd Respondent were standing trial in respect of Capital Market matters unlike in Okey Nwosu's case or for violation of banking rules and regulations as in Akingbola's case. It was contended that the lower Court is at liberty to depart from a decision of a higher Court when such decision is inapplicable in the case before it. The case of Okoye v. C.P.M.B. Ltd (2008) 15 NWLR part 1110 p.335 at 362 was cited in support. The Learned Senior Counsel submitted that even assuming although not conceding that the case of Okey Nwosu v. FRN constituted a precedent which the lower Court was bound to follow, that decision was in conflict with the decision of this Court in Sebastine Adigwe v. FRN (2013) 7 BFLR p.326 at 343 and therefore, the lower Court was at liberty to choose which of the cases to follow. The Learned Senior Counsel further argued that even if the amended Information dated 1/6/11 was in respect of Capital Market matters, Section 251(3) of the 1999 Constitution did not confer exclusive jurisdiction on the Federal High Court in respect of Criminal matters and consequently the 27 17

24 count amended Information ought to be prosecuted in the High Court of Lagos State. Chief Anthony Idigbe SAN in his submission in response argued that the Appellant's grouse was simply that the lower Court adhered to the doctrine of stare decisis. From the facts of the case as well as the decision of this Court in Okey Nwosu v FRN and Akingbola v. FRN, the lower Court, it was contended, had no option but to follow the position of the law as stated in the two cases since it was bound to do so in consonance with the doctrine of stare decisis and in compliance with the provisions of Section 287(2) of the Constitution. Sylva Ogwemoh SAN for the 3rd Respondent in his argument on the issue submitted that under Section 287(2) of the Constitution of the Federal Republic of Nigeria 1999 as amended, the decisions of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate jurisdiction to the Court of Appeal. The Learned Senior Counsel noted that the provision is in tandem with the doctrine of stare decisis otherwise known as the doctrine of judicial precedence. The Learned Senior Counsel 18

25 contended that Okey Nwosu's case as well as Akingbola's case have facts that are similar to the facts in the present appeal. The charges against the 3rd Respondent, he submitted, relate to matters over which the State High Court had ceased to have jurisdiction by virtue of Section 251 of the 1999 Constitution and therefore the argument of the Appellants' Senior Counsel that Section 251(3) of the Constitution does not confer exclusive jurisdiction on the Federal High Court in Criminal matters is wrong. The case of Okey Nwosu v FRN and that of Akingbola v FRN were based on items covered by the Exclusive Legislative List in the 1999 Constitution, he argued. The cases that the Appellant's Learned Senior Counsel cited in support of his position he argued, were decided before the 1999 Constitution. It was contended that the lower Court was perfectly in order when it declined jurisdiction to hear the case before it. On the argument that the lower Court was at liberty to choose between Okey Nwosu s caseand Adigwe's case, it was submitted that the two cases are not similar and therefore, it was not open to the lower Court to follow Adigwe's case. Kemi 19

26 Pinheiro SAN in his Reply Brief responded to the submissions of the Respondents. I do not consider it necessary to highlight the submissions. They tended to reiterate the position taken in the Appellant's Brief. With the oven fresh judgment of the Supreme Court in Federal Republic of Nigeria v. Okey Nwosu and 4 Ors in SC.74/2014, SC.73/2014 and SC.75/2014 delivered on the 1st day of July 2016, we can confidently state that this issue has been firmly resolved and laid to rest. In its judgment, the Supreme Court stated thus: "The lower Court's judgment that the trial Court has lost its jurisdiction to the Federal High Court on the basis of the latters exclusive jurisdiction under Section 251(1) of the 1999 Constitution is therefore perverse. It is a decision that neither draws from the evidence on record nor from a correct construction of Section 251(3) of the Constitution...The truth is that stealing is a matter which falls within the legislative competence of the Lagos State House of Assembly and having been legislated upon, the trial Court retains the jurisdiction of trying the 1st Respondent." (See at page 69 of the judgment). It is 20

27 noteworthy that the first issue submitted before the Supreme Court for determination in the above case is 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 whether the High Court of Lagos State had no jurisdiction to entertain same when such an issue was neither raised nor placed before the Court of Appeal by either of the parties. With the judgment of the Supreme Court, it seems to me that there is no more room for quibbling or to split hairs over the jurisdiction of the State High Court in the matter. I now turn to issue 3 which is whether in the absence of any application by the 3rd Respondent to have counts 1-24 and 26 of the amended Information quashed against him, the lower Court was right to proceed to strike out the charges against the 3rd Respondent. On this issue Kemi Pinheiro SAN for the Appellant contended that notwithstanding the fact that the 3rd Respondent never filed any application seeking to quash the charges on the basis of Okey Nwosu's case, the lower Court proceeded to quash the pending counts against the 3rd Respondent 21

28 contrary to the settled principle of law that a Court cannot give to a party a relief not sought by that party. It was argued that in a joint criminal trial, the discharge or acquittal of one accused person does not mean that a coaccused person will also be discharged and acquitted. The case of Idioke v. State (2008) 13 NWLR part 1104 p.225 at was cited in support. In his response, Chief Anthony Idigbe SAN for the 1st and 2nd Respondents contended that the lower Court was quite right upon finding that it lacked jurisdiction to determine the charges before it, to dismiss the charges in their entirety for want of jurisdiction. Sylva Ogwemoh SAN for the 3rd Respondent in his response to the issue contended that once a Court comes to a decision that it lacks jurisdiction to adjudicate in a matter, any further determination of any further issue in the matter becomes otiose, impossible and unnecessary. The action to be taken by the Court in that event, he submitted, is to strike out the matter. Now on the consequences of lack of jurisdiction by a Court, Niki Tobi JCA (as he then was) stated thus in the case of Kotoye v. Saraki (1993) 5 22

29 NWLR part 296 p.710 at p 724: "Once it is shown... that the Court has no jurisdiction or lacks jurisdiction, the prop or foundation of the case is not only shaken but entirely broken and beyond salvage in its existing legal content. The case crumbles. In effect, there is no case before the court for adjudication. The parties cannot be heard on the merits of the matter. That is the end of the litigation unless the jurisdictional problem is solved (if it can be solved) or the action filed in a Court of competent jurisdiction, in which case, it is resuscitated and tried de novo." Having held that it had no jurisdiction in the matter based on the decision of the Court of Appeal in Okey v FRN, the lower Court could not go on to consider counts The proper thing to do was to put an end to the matter before it. It will be odd when a party is over and the music has stopped, to see anyone still dancing on the dancing floor. Once the Court has no jurisdiction, it is game over in that particular case. The 4th and final issue is whether the Appellant's Notice of Preliminary Objection had any bearing with the decision in Appeal Nos.CA/L/1082/2013 and 23

30 CA/L/1083/2013. On this issue, Appellants Learned Senior Counsel submitted that the Appellant's Notice of Preliminary Objection had no bearing with the decisions of this Court in Appeal Nos. CA/L/1082/2013 and CA/L/1083/2013 and that the lower Court had a duty to treat the grounds of objection and give reasons for arriving at a decision. It was submitted that a judge must give reasons for arriving at his conclusion in a matter. The case of Imokene v Aluewe (1995) 7 NWLR part 409 at 587 and several other cases were cited in support. It was the submission of the Learned Senior Counsel that the lower Court failed to give reasons for the dismissal of the Appellant's Preliminary Objection more so when its purpose was to terminate the hearing in limine either in part or in whole. In his response, Chief Anthony Idigbe SAN submitted that the Preliminary Objection of the Appellant was based on a mistaken belief that the Motion on Notice of the 1st and 2nd Respondents dated 27/11/13 sought to reopen and re-argue what the lower Court had decided as far back as 22/6/11. All that the lower Court did, Learned Senior Counsel argued, was to reject the Appellant's 24

31 invitation to disobey and disregard the order of the Court of Appeal for a hearing of the application. It was submitted that the reason for the lower Court's dismissal of the Appellant's objection was well stated in the Ruling. Sylva Ogwemoh SAN on the 4th issue, referred us to what the lower Court said on the Preliminary Objection. The argument of Mr. Kemi Pinheiro SAN on issue 4 is quite narrow and it is to the effect that the lower Court had a duty to consider and give reasons for arriving at its decision in the Preliminary Objection. Having read the Ruling of the lower Court I am unable to agree that the lower Court did not give any reasons for its decision; it did. The lower Court considered the orders of the Court of Appeal in Appeal Nos. CA/L/1082/2013 and CA/L/1083/2013 and held that it was clear from the pronouncement of the Court of Appeal in those cases, that the bottom had been knocked out of all the grounds canvassed in the Notice of Preliminary Objection. From my consideration of all the issues, it is clear that the appeal has merit as the overriding issue in the appeal is on the jurisdiction of the lower Court to hear and 25

32 determine the case before it. That overriding and primary issue has now been settled by the awaited judgment of the Supreme Court earlier referred to in this judgment. What remains is to consider what the consequential order should be. Ordinarily, this should not be an issue at all, but Kemi Pinheiro SAN has urged us in his oral argument whilst adopting the Briefs of Argument to remit the matter to Okunnu J. of the Lagos State High Court before whom considerable progress had been made in the hearing of the case. He argued that justice is a three way street and the Court should consider the financial burden to the tax payer for the prosecution of the case. Chief Anthony Idigbe SAN was of the view that should the Court allow the appeal, the case should be sent back to the Chief Judge of Lagos State for retrial before another judge. Since it is now clear from the judgment of the Supreme Court that the lower Court has jurisdiction to hear the mater, the question of which Court should hear the matter should really not arise. This is because there is only one High Court in a State. See Section 270(1) of the 1999 Constitution as amended. See also Witt & Busch 26

33 Ltd v. Dale Power Systems Plc. (2007) 77 NWLR part 1062 p.1. In the final analysis, the appeal has merit and is allowed. The Ruling striking out the charges against the accused persons and the order discharging the accused persons before the lower court are hereby set aside. Consequently the case is remitted to the Chief Judge of Lagos State for assignment to a judge other than L.B. Lawal-Akapo J and Okunnu J for trial and determination expeditiously. ADZIRA GANA MSHELIA, J.C.A.: I was privileged to read in advance the draft of the Judgment just delivered by my learned brother, Daniel-Kalio JCA. His lordship has adequately dealt with all the issues relevant for the determination of the Appeal. The questions raised thereby have been meticulously considered and determined in the said judgment. I have nothing useful to add. I am therefore in agreement that the Appeal is meritorious and same succeeds. Appeal allowed. In the result, I endorse all the consequential orders contained in the lead judgment. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege of reading in draft 27

34 the lead judgment just delivered by my learned brother, Obietonbara Daniel-Kalio, J.C.A. I agree with the lucid reasoning and conclusion reached therein. Indeed, I have nothing gainful to add thereto. In this vein, I too allow the appeal and abide by the consequential orders made in the said lead judgment of my learned brother, Daniel-Kalio, J.C.A. ISAIAH OLUFEMI AKEJU, J.C.A.: I had a preview of the judgment of my learned brother, Obietonbara Daniel-Kalio, JCA, just delivered. I agree with the reasoning of my learned brother based on the meticulous consideration and determination of the four issues raised by the appellant and adopted in the determination of the appeal. I agree also with the conclusion that there is merit in the appeal. I allow the appeal and abide by the consequential orders. RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the ample opportunity of reading in draft the lead judgment just delivered by my learned brother, OBIETONBARA DANIEL-KALIO, JCA who judiciously and judicially considered and properly determined the issues raised by the parties in 28

35 this appeal. I am in total agreement with the way and manner my lord resolved the four (4) issues formulated by the Appellant and therefore subscribed to the reasoning and conclusion reached thereof. Moreso that the Apex Court has earlier made pronouncement on similar issues on the 1st day of July, 2016 in the judgment delivered same day of FEDERAL REPUBLIC OF NIGERIA V OKEY NWOSU & ORS in SC.74/2014, SC.73/2014 and SC.75/2014. This appeal succeeds and I also abide by the consequential orders of my noble brother in remitting the charge No. ID/154C/2011 to the Chief Judge of Lagos State for assignment to a Judge of the High Court of Lagos State other than those who handled the matters. The case is to be accorded accelerated hearing in view of the age of the criminal trial which the charge was filed since

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