Legalpedia Electronic Citation: LER [2018]SC. 444/2011

Suit Number: SC. 444/2011

AREAS OF LAW:

Appeal, Court, Criminal Law And Procedure, Judgment And Order, Practice And Procedure, Words And Phrases

SUMMARY OF FACTS

Sometime in 2005, the Appellant received a petition against Chief DSP Alamieyeseigha, a former Governor of Bayelsa State and it was discovered during the investigation that the former Governor bought the property known as Chelsea Hotel, Abuja with funds belonging to Bayelsa State Government, using one of his companies, Herbage Global Services Ltd. The property was sold to the former Governor by Panasonic Industries Ltd, a company owned by the Respondent for One Billion, Five Hundred Million Naira and a sale agreement evidencing same was made. The Appellant herein obtained an order of temporary forfeiture against the properties of the accused persons following a charge filed against Chief DSP Alamieyeseigha and Herbage Global Services Ltd. While the said temporary forfeiture was pending and after the impeachment of Alamieyeseigha, the Respondent entered into another agreement with the new government of Bayelsa State with the sole aim of re-transferring the Chelsea Hotel, Abuja to Bayelsa State Government and in the process, he misled the government that he sold the property for Two Billion Naira, but was only paid one and a half billion, leaving a balance of N500, 000,000. A fresh agreement was entered between the Respondent and Bayelsa State Government for N400, 000,000 and a cheque for the said amount was issued to the Respondent. Upon becoming aware of the foregoing, the Appellant’s operative invited the Respondent for questioning. A charge was drafted against the Respondent herein for tempering with a property in respect of which temporary forfeiture order has been obtained and added that the Respondent offered to refund the sum of N400,000,000 he collected from Bayelsa State Government and hence deposited a cheque of N 100,000 as part payment of the said sum. The Respondent in disputing the facts above stated that he offered the hotel for the sum of N2, 000,000,000.00 (Two Billion), that the sale agreement was made in two batches, one billion, five hundred million naira and five hundred million naira respectively, and same was evidenced in the sale agreement which was made in two batches and he retained the title deed until when the balance would be paid. The Respondent paid the sum of one hundred million naira (N100, 000,000) under circumstances of threat and fear for his life. Following his release on bail, he wrote several letters to the Appellant to return the money they collected by force to no avail, hence, he

brought an action at the Federal High Court, Abuja seeking for an order of mandatory injunction directing the Appellant to release to him the Standard Chartered Bank cheque for the sum of N100,000,000.00(one hundred million naira) which was unlawfully collected from him.  The trial Judge dismissed the Respondent’s claim on grounds that the claims were not proved. The Respondent being dissatisfied with the trial court’s judgment appealed to the Court of Appeal, which allowed the appeal in part and directed the Appellant to release the cheque for the said sum. Further dissatisfied with the lower court’s decision, the Appellant has appealed to this court

 

HELD

Appeal Dismissed

ISSUES FOR DETERMINATION

• Whether having regard to the facts and the issues submitted for determination by the parties, the Court of Appeal was right when it held that the Appellant collected the Standard Chartered Bank Cheque for the sum of N100,000,000= (one hundred million naira) on behalf of Bayelsa State Government and that the collection was contrary to the provision of section 14(2) of the Economic and Financial Crimes Commission (Establishment) Act, 2004.

 

• Whether the Court of Appeal was not wrong to have held that there was no agreement to compound the offence alleged against the Respondent and that the Appellant violated the Respondent’s right by collecting the money as against prosecuting the Respondent

RATIONES

RAISING ISSUE SUO MOTU – WHETHER IT IS THE FUNCTION OF A COURT TO RAISE SUO MOTU ISSUES NOT CANVASSED IN THE PROCEEDINGS BEFORE IT

“The law is well settled that it is not the function of any court to raise suo motu issues not canvassed in the proceedings before it which does not touch on the jurisdiction of the court to which counsel were not asked to address it on. It is against the principle of fair hearing for a court to raise an issue suo motu and decide on it without inviting parties to address it on the matter. See Mojekwu Iwuchukwu (2004) 11 NWLR (pt 883) 196, Leaders of Company Ltd & anor v Major General Musa Bamaiyi (2010) 18 NWLR (pt 1225) 329, Agbaye & Sons v Ajibola & ors (2002) 2 NWLR (pt 750) 127, Commissioner for Works, Benue State & anor v Devcon Development Consultants Ltd & anor (1988) 3 NWLR (pt 83) 407, Ochonma v Ashirim Unosi (1965) NWLR 321”. PER J.I.OKORO,J.S.C

RAISING ISSUE SUO MOTU – AT WHAT INSTANCE WILL A COURT BE PROPERLY ACCUSED OF RAISING AN ISSUE SUO MOTU?

“More often than not, courts are being accused of raising issues suo motu and deciding on same without inviting the parties to address it on the matter. But at what instance will a court be properly accused of raising an issue suo motu? This question was answered by this court in Mathew Okechukwu Enelewe v International Merchant Bank of Nigeria Ltd (2006) 19 NWLR (pt 1013) 146, (2006) LPELR – 1140 (SC) at page 25 paragraphs A – C, per Tobi, JSC (of blessed memory) as follows:-

“A Judge has the right in our adjectival law to use particular words or phrases, which, in his opinion, are germane to his evaluation of the facts of the case. In so far as he does that in line with the evidence before him, it will be unfair for counsel to castigate him or accuse him of raising issue suo motu. A judge can only be accused of raising issue suo motu if the issue was never raised by any of the parties in the litigation. A Judge cannot be accused of raising issue suo motu if the issue was raised by both parties or by any of the parties in the proceeding. In other words, the Court of Appeal cannot be accused of raising issue suo motu if the issue was canvassed at the trial or on appeal”

• PER J.I.OKORO,J.S.C

OBITER DICTUM – WHETHER AN OBITER DICTUM CAN FORM PART OF THE RATIO DECEDENDI OF A JUDGMENT

“In fact an obiter dictum is an expression of opinion made in giving a judgment by the Judge but not necessary to his decision and accordingly cannot form part of the ratio decidendi of the judgment. See Dr. Saraki Oshodi & ors v Yisa Oseni Eyifunmi & anor (2007) 7 SC (pt 2) 145, (2000) LPELR – 2805 (SC)”. PER J.I.OKORO, J.S.C

COMPOUNDING OF AN OFFENCE – WHETHER THE ECONOMIC AND FINANCIAL CRIMES COMMISSION IS EMPOWERED TO COMPOUND ANY OFFENCE PUNISHABLE UNDER ITS ACT

“Now, section 14(2) and (3) of the Economic and Financial Crimes Commission (Establishment) Act, 2004 states:-

“14(2) Subject to the provisions of section 174 of the Constitution of the Federal Republic of Nigeria, 1999 (which relates to the power of the Attorney – General of the Federation to institute, continue,   takeover   or   discontinue criminal proceedings against any person in any court of law), the commission may compound any offence punishable under this Act by accepting such sums of money as it thinks fit, exceeding the maximum amount to which that person would have been liable if he had been convicted of that offence.

(3) All moneys received by the Commission under the provisions of subsection (2) of this section shall be paid into the Consolidated Revenue Fund of the Federation”.

From the above provisions, the appellant is empowered to do the following:-

1. Compound any offence punishable under the EFCC Act (subject to the provision of section 174 of the Constitution of the Federal Republic of Nigeria (as amended).

2 By accepting such sums of money as it thinks fit

3. However, such sums of money must exceed the maximum amount to which that person would have been liable if he had been convicted of that offence.
4. Such money shall be paid into the Consolidated Revenue Fund of the Federation”. PER J.I.OKORO, J.S.C

COMPOUNDING OF AN OFFENCE- DEFINITION OF COMPOUNDING OF AN OFFENCE

Compounding of an offence is defined in the Black’s Law Dictionary, 6th Edition as follows:-

“Compounding crime consists of the receipt of some property or other consideration in return for an agreement not to prosecute or inform on one who has committed a crime.”

• PER J.I.OKORO,J.S.C

COMPOUNDING OF AN OFFENCE- INGREDIENTS THAT MUST CO-EXIST FOR AN OFFENCE TO BE PROPERLY COMPOUNDED BY THE ECONOMIC AND FINANCIAL CRIMES COMMISSION UNDER ITS ACT

“To properly compound an offence by the EFCC, under the EFCC Act, the following must co-exist:-

1. The accused must not only have knowledge of the offence, there must be the actual commission of crime.
2. There must be an agreement not to prosecute.
3. There must be a receipt of consideration i.e. sums of money exceeding the maximum amount to which that person would have been liable if he had been convicted of the offence.
4. The offence must be punishable under the EFCC Act.

• PER J.I.OKORO,J.S.C

DECISION OF COURT – BASIS FOR A VALID DECISION OF COURT

“A valid decision of a court of trial or appellate, must be based on the issues submitted to it by the parties and canvassed before it. If the court is of the view that the issue before it is not capable of justly settling the dispute between the parties, it can reframe the issue from the grounds of appeal. See Ifeanyichuchu Trading Investment Ventures Ltd & Anor v. Onyesom Community Bank Ltd (2016) Vol. 251 LRCN 80.”PER W.S.N. ONNOGHEN, J.S.C

STATUTE REFERRED TO:

Economic and Financial Crimes Commission (Establishment) Act, 2004