Why Ex-Gov Dariye must face trial –SC (Continued last week)

This court held that the 2003 attempt on the life of the victim in Anambra State was a continuation of the earlier attempt of 2001 in Abuja and that the FCT High Court has territorial jurisdiction to try the accused. In this case, an element of the offence charged as disclosed in the proof of […]

This court held that the 2003 attempt on the life of the victim in Anambra State was a continuation of the earlier attempt of 2001 in Abuja and that the FCT High Court has territorial jurisdiction to try the accused. In this case, an element of the offence charged as disclosed in the proof of evidence is the operation of an account in a bank in Abuja with state funds. There is no appeal on the finding and is deemed conceded by the appellant. See Onibulo v. Nkibu (1982) 2 SC 60 at 63.
The point is crucial to the issue of territorial jurisdiction of the FCT High Court. The two courts below made specific findings that the essential events took place within the territorial jurisdiction of the FCT High Court. The appellant did not contest the findings but kept a studied but loud silence on the issue.
It is deemed that the appellant accepted as proved the allegation that an element of the offence occurred within the territorial jurisdiction of the trial court, (See Zacchus A. Koya v. UBA Ltd (1997) NWLR (Pt. 481) page 251 ratio 2) and I would resolve the issue in favour of the respondent and against the appellant.
Issue 3 is whether or not the respondent has powers to prosecute the appellant in view of the fact that the subject matter of the charge does not belong to the Federal Government but is the property of the Plateau State Government.
First, as rightly pointed out by the learned senior counsel for the respondent, the offences are charged under the provisions of the Penal Code which is a federal legislation. It is a federal indictment and the Attorney-General of the
Federation by himself or through an agent may prosecute for the offences alleged.
The owner of the subject matter of the charges is immaterial. What is material is that a federal enactment has been violated. See S.174(1) of the Constitution of the Federation, 1999 as amended for the exercise of the power of the Attorney-General of the Federation. Subsection 3 provides: “In exercising his powers under this section, the
Attorney-General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.”
See the case of Anyebe v. The State (1986) 1 SC 87 where this court held that the Attorney-General of Benue State had no power to prosecute an accused for an offence under S.28 of the Firearms Act, an offence created by the Act of the National Assembly except with the express authority of the Federal Attorney-General. It is a different matter if the federal legislation was made to operate within the state. See Emelogu v. The State (1988) 5 SCNJ 79. It is not the case here.
It follows from the above and this was the opinion of this court in A-G of Ondo State v. A-G of the Federation (2009) 90 NWLR (Pt.772) 222 at 308 that “generally speaking, power to prosecute for an offence is not determined by the ownership of the property allegedly stolen or misappropriated…” The determining factors are:
(a) Who can exercise prosecution power over the offence,
(b) The nature of the offence charged and,
(c) Where the offence was committed-the venue.
The offences in the indictment against the appellant are financial crimes and under S.13 (2) of Economic and Financial Crimes Act, 2004 the commission has powers to prosecute the appellant.
The institution of proceeding against any person before any Court in Nigeria other than a Court Martial is not the exclusive prerogative of the Attorney-General of the Federation and/or his counterpart in the state. S.174 (1)(b) and (c) and S.211(1)(b) and (c).
It is my view that the respondent has powers to prosecute the appellant directly or through an agent. I resolve the issue against the appellant.
Issue 4 is whether, as argued by the appellant, the High Court of the Federal Capital Territory Abuja, is forum non-convenience. In other words, is the trial court unsuitable for the trial of the appellant. See Black’s Law Dictionary, 8th Edition 680. The expressions “suitable and convenience” associated with a determination of forum convenience and forum non-convenience refer, in my view, to the person standing trial.
The question is whether or not the venue for the trial is suitable or convenient for the accused who is to stand trial. In the case at hand, key witnesses in the case are staff of the bank in which the appellant operated the account of his company. The bank is domiciled in Abuja where the said staff reside. Most of all, the appellant, a Senator of the Federal Republic of Nigeria, resides in Abuja within the jurisdiction of the trial court.
To move the trial to Plateau State on the flimsy excuse that the documents relevant to the case are in Jos is, on the facts before us, an exercise in forum shopping, nor can the charge be struck out on the basis of forum non-convenience. I resolve the issue against the applicant.
Before I conclude this judgment, I will make a few observations:
The language employed by the learned senior counsel for the appellant is inappropriate and smacks of allegation of impropriety against his brother Silk. Manipulation in the context of this case connotes some sort of moral turpitude. The duty of the prosecuting counsel is not to win, but to place all the relevant facts before the court to enable it decide the merit vel non of the case.
Manipulation of the facts implies a deliberate distortion of the facts to mislead the court in its decision and this would amount to unethical conduct on the part of a prosecuting counsel.
Trial in the case was to start on 13th November, 2007 about eight years ago. The trial is yet to start. The issues raised in this application could have been properly raised in a no-case submission at the end of the prosecution’s case; or in the defence of the appellant if called upon to defend.
In essence, learned senior counsel is asking the court to set aside its landmark decision in such case as Patrick Njoven v. The State (supra) and Nyame v. The State (supra). In Nyame’s case, the facts are on all fours with the facts of this case. And there is no tenable reason for this court to go back on its earlier decision on the points raised in the application.
It is not the duty of learned counsel to resort to motions aimed principally at delaying or even scuttling the process of determining whether or not there is substance in the charges as laid. In my view, this motion is a disservice to the criminal process and a contemptuous lip service to the fight against corruption. The tactics employed here is only one of the means by which the rich and powerful cripple the criminal process.
There are cases where the accused develop some rare illness which acts up just before the date set for their trial. They jet out of the country to attend to their health and the case is adjourned. If the medical facilities are not available locally to meet their medical needs it is only because due to corruption in high places the country cannot build proper medical facilities equipped with the state of the art gadgets. There should be no clog in the process of determining whether or not a person accused of crime is guilty irrespective of his status in the society.
Let me trace the genesis of this appeal.
The trial court, having considered the application before it, granted leave to the respondent to prefer the charge against the appellant. Upon his arraignment in July, 2007 appellant appeared to have seen no defect in the charge and joined issue on each of the 23 counts of the charge with the respondent.
On the day slated for the trial to open, 13/11/2007, the appellant reversed himself, as it were, and filed an application urging the court to quash the charge laid against him for the various reasons stated in the application. The trial court heard the application and made a considered ruling dismissing same.
Appellant appealed to the Court of Appeal and the said court dismissed the appeal and affirmed the decision of the trial court. Appellant then appealed to this court. Meanwhile, the case instituted in 2007 is yet to take off. In my view and in view of the facts herein, the sole aim of the appellant is to stall the hearing in the charge laid against him.
Now the appellant has come to the last bus stop in his journey to scuttle his trial.
Predictably, he may open another avenue to derail the criminal justice delivery system in his case. He is using the rules of law to fight the law for justice delayed, not to mention unduly delayed, is a mockery of justice. He embarked on this unnecessary long journey despite the fact that any mistake in the particulars of the charge will render the whole proceedings liable to be quashed at the end of the trial. See Okeke & Ors v. I.G.P. (1965) 2
All NLR 81, Queen v. Gbadamosi (1959) 4 JSC 181.
The same applies to the issue of jurisdiction. A trial conducted without jurisdiction is a nullity, irrespective of how well it is conducted. See Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350, Osa v. Akureju (1989) 3 NWLR (Pt. 84) 508.
When a court has granted leave to prefer a charge, dismissed the application to quash the charge and this decision was affirmed on appeal, the gain in avoiding a trial on a charge perceived to be incompetent ought to be weighed against the possibility of standing two trials in place of one. In this case, the appeal up to the Supreme Court has taken more time and expenses than the actual trial would have taken.
Lawyers are engaged to espouse the case of their clients. It is a monopoly and they should bear in mind that like all monopolies, their conduct are subject to strict rules of accountability for adherence to set ethical standards. They can fight the cause of their clients but as lawyers they must act within the rules regarding ethical conduct. They owe a duty to their client but they owe a higher duty to a higher cause – the cause of justice.
In conclusion, all the issues having been resolved against the appellant, the appeal is completely bereft of merit and it is hereby dismissed. The judgment of the court below which affirmed the judgment of the trial court is affirmed.
The High Court of the Federal Capital Territory Abuja can now proceed with the trial of the appellant on the charges laid against him.
Appeal dismissed. Trial of the appellant to commence.

Concluded