Why Ex-Gov Dariye must face trial –SC

At the conclusion of the investigation, the respondent filed an application before the High Court of the Federal Capital Territory for leave to prefer a charge against the appellant. A proof of evidence was prepared and attached to the application. On 13th July, 2007 leave was granted to the respondent to prefer a criminal charge […]

At the conclusion of the investigation, the respondent filed an application before the High Court of the Federal Capital Territory for leave to prefer a charge against the appellant. A proof of evidence was prepared and attached to the application. On 13th July, 2007 leave was granted to the respondent to prefer a criminal charge against the appellant. Upon his arraignment, the appellant pleaded not guilty to all the 23 counts of the charge preferred against him. The matter was adjourned to 13th November, 2007 for the prosecution to open its case. The appellant was admitted to bail.
On 13th November, 2007 the date to which the case was adjourned for the respondent to open its case, the appellant brought a motion before the trial Court praying for an order to quash the 23 counts charge against him on diverse grounds, including lack of locus standi to prosecute him and lack of jurisdiction of the trial court to hear and determine the case. The respondent filed a counter affidavit and a written address in opposition to the motion.
On 10th December, 2007 the learned trial judge denied the application and dismissed same.
Appellant’s appeal to the lower court was dismissed on 17th June, 2010.
Still aggrieved, the appellant, by a notice of appeal filed on 13th July, 2007 appealed to this court on eight grounds endorsed on the notice.
I have considered the issues formulated on behalf of the parties. Some of the issues overlap with a resultant repetition of the argument proffered.
Some of the issues are split. For instance, in my view, the issue of venue for trial is subsumed in the issue of jurisdiction and should not have been presented as a separate issue. There is need to narrow down the issues for precision, clarity and brevity and for a judicious and proper determination of the issues in contention between the parties.
In the circumstances, I will adopt the established principle of reformulating the issues in the brief, taking care not to go outside the grounds of appeal.
It is my view that the following reformulated issue will adequately dispose of the appeal:
(1) Does the proof of evidence disclose a prima
facie case against the appellant?
(2) Does the High Court of the Federal Capital
Territory Abuja possess the territorial jurisdiction to try the appellant on the charges filed against him?
(3) Has the respondent power to prosecute the appellant for the offences charged?
(4) Is the High Court of the Federal Capital
Territory Abuja forum not convenient for the trial?
I will resolve the four issues seriatim and in so doing I will have to walk a tight rope so as to avoid delving into the merit vel non of the charges while determining the preliminary objection.
Issue 1 is whether or not a prima facie case is disclosed in the proof of evidence before the trial court, a poser answered differently by the parties.
While the appellant vigorously contended that the proof of evidence disclosed no prima facie case against him, the respondent maintains the contrary.
It is necessary to determine the import of the Latin expressions “prima facie” and “prima facie case”. In Black’s Law Dictionary, 8th Edition at page 1228, the expression “prima facie” is defined as “at first sight; a first appearance but subject to further evidence or information”.
Consequently, “prima facie case” is defined as:
“(1) The establishment of a legally required rebuttable presumption.
(2) A party’s production of enough evidence to allow the fact-finder to infer the fact at issue and rule in the party’s favour.”
Applying the above definitions to the facts of this case, the question is whether or not there is a fact or set of facts in the proof of evidence that would require the appellant to stand trial. For instance, if the facts contained in the proof of evidence are so incredible as to be outside the realm of reality, the court will not require an answer of the appellant.
To take a very simple example, if the allegation in the proof is that the appellant blew up the 2nd
Niger Bridge or that he blew up the Kano Airport the Court would dismiss the allegations with a wave of the hand because it is a known fact that the 2nd Niger Bridge has not even been built and the Kano Airport is intact. In these instances there would be no prima facie case against the appellant.
To determine whether there is a prima facie case against the appellant, the entire processes before the trial court – the charge, the statements of offences, the statements of prospective witnesses as well as the statements of the appellant – will be considered.
In Count 2 of the charge laid against the appellant, it was alleged that he misappropriated the huge sum of N204,000,000 (two hundred and four million naira) belonging to his state government.
It was alleged that the money was paid into the account of Ebenezer Retnan Ventures. Did the entity, Ebenezer Retnan Ventures into whose account the money belonging to the Plateau State Government was paid belong to the Plateau State Government? Who operated the account – the state government or the appellant?
The account was opened and operated, in the name of Ebenezer Retnan. Further it was opened without proper documentation. This, and similar allegations involving a whooping sum of N1,161,162,900 (one billion, one hundred and sixty-one million, one hundred and sixty-two thousand nine hundred naira only) are not allegations that can be dismissed with a wave of the hand whether they are considered collectively or individually.
The facts alleged against the appellant are such that if not contradicted and if believed will be sufficient to prove the case against him.
Ajidagba v. IGP (1948) SCNLR 60. The truth or falsity of the allegation is not in issue at this state, but will be determined after the parties have presented their respective cases. The lower court gleaned through the printed record and proofs of evidence and came to the conclusion that there were enough materials in the proof of evidence to proceed with the trial of the appellant. The conclusion cannot be faulted in view of the facts in the proof of evidence.
I cannot agree more with the court below that the proof discloses a prima facie case against the appellant and so I resolve the issue against the appellant.
Does the High Court of Federal Capital Territory
Abuja have the territorial jurisdiction to try the appellant on the charges laid against him? This is issue 2.
Jurisdiction as defined in Black’s Law Dictionary, 8th Edition page 867 is the Court’s power to decide a case or issue a decree. See A-G Federation v. A-G Abia State & 35 Ors (2001) 7 SC (Pt. 1) 100 wherein this court held that the word “jurisdiction” means the authority the court has to decide matters before it or to take cognizance of matter presented in a formal way for its decision. See also National Bank v. Shoyoye (1977) 5 SC 181.
Territorial jurisdiction implies a geographic 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.
Section 255(1) of the Constitution of the Federation 1999 as amended created the High Court of the Federal Capital Territory Abuja in the following terms:
“S.255(1): There shall be a High Court of the
Federal Capital Territory, Abuja.”
S.257(1) of the Constitution (supra) confers on the court jurisdiction inter alia:
“… to hear and determine any criminal proceeding involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.”
An offence may comprise of more than one element and the constituent elements may take place in different jurisdictions. In such case the appropriate means to determine in which jurisdiction to try the accused is to identify what element of the offence in the proof occurred where. See S.4 of the Penal Code as interpreted in Nyame v. FRN (2010) 7 NWLR (Pt.1193) 344 at 394-395, a case in which the facts are similar to the facts herein. See also Njovens v. The State (1973) NNLR 76 at 80.
The offence may consist of attempts at the life of the victim occurring in different jurisdictions. Any of the jurisdictions in which an element occurred has territorial jurisdiction to try the accused. This was the case in Mbah v. The State (2014) 235 LRCN 1 where the first attempt on the life of the victim took place in October, 2001 in Abuja and the last and final attempt was carried out in 2003 at Aguru, Anambra State.

To be continued