ONTARIO OIL & GAS NIGERIA LIMITED v. FEDERAL REPUBLIC OF NIGERIA

CORAM

OBASEKI, JUSTICE SUPREME COURT

ABUBAKAR TIJJANI     JUSTICE OF THE COURT OF APPEAL OF NIGERIA

PARTIES

ONTARIO OIL & GAS NIGERIA LIMITED   APPELLANTS

FEDERAL REPUBLIC OF NIGERIA RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Appellant was alleged to have committed offences relating to obtaining by false pretences, forgery, uttering and conspiracy which offences are state offences. The Appellant made effort to bring the charge within the admiralty jurisdiction of the Federal High Court by virtue of section 251(1)(3) of the Constitution of the Federal Republic of Nigeria and Section 19 of the Admiralty Jurisdiction Act, 1991. He sought for a discharge on the grounds that no case was made out against him at the close of the Prosecution’s case. The lower Court dismissed the application, assumed jurisdiction and struck down section 19 of the Admiralty Jurisdiction Act as being inconsistent with the constitution. Dissatisfied with the ruling of the lower court, the Appellant appealed to the Court of Appeal

HELD

Appeal Dismissed

ISSUES

Considering the clear provisions of Section 251(1)(a)(g)(n)(s) and (3) of the Constitution; Items 36, 39, 67 and 68 of the Exclusive Legislative List; Section 8(1) of the Federal High Court Act; Sections 1(1) & (2), 19 and 25 of the Admiralty Jurisdiction Act, binding decision of the Court of Appeal and Supreme Court on the subject cited to the lower Court, as well as the evidence elicited during trial, whether the lower Court did not fall into a serious error by assuming jurisdiction on the Information dated 20th July, 2012 filed before it against the Appellant.

(Grounds 1, 2, 3, 4, 5, 6 and 7).Having regard to the ingredients of the offence in the Information, the evidence adduced by the Prosecution and the extent to which such evidence was discredited under cross-examination as well as the inherent contradiction in the testimonies of the prosecution witness whether the lower Court was not in grave error by over ruling the Appellant’s no case submission. (Grounds 9, 10 and 11).Considering the clear provision Section 36(12) of the Constitution vis-a-vis Counts 3, 4, 5, 7 and 8 of the Information brought under the various Section of the Criminal Code, Cap C17 Vol. 2 Laws of Lagos State of Nigeria, 2003 (which is a non-existing law), whether the lower Court did not fall into grave error by countenancing the Information (Ground 8).Considering the principle of distinct corporate personality of a company from its Shareholders qua Directors, whether the Appellant could be made vicariously liable for an act allegedly committed by the

RATIONES DECIDENDI

OFFENCE OF OBTAINING BY FALSE PRETENCE – WAYS IN WHICH OBTAINING BY FALSE PRETENCE CAN BE COMMITTED

“In Aguba V. FRN (2014) LPELR 23211, this court held that the offence of obtaining property by false pretences could be committed in writing, or even by mere oral communication of the accused person”. PER O.ADEJUMO, J.C.A.

DETERMINATION OF THE JURISDICTION OF A COURT –THE JURISDICTION OF A COURT IS DETERMINED IN THE LIGHT OF THE ENABLING LAW IN RELATION TO THE CHARGE PREFERRED AGAINST AN ACCUSED PERSON

“The law is settled beyond any controversy that a determination of the jurisdiction of the court will be taken in the light of the enabling law vis-a-vis the charge preferred against the accused person. The fundamental nature of jurisdiction in this regard requires that an objection to the criminal jurisdiction of the court be determined on the basis of available materials placed before the court. Thus, in appropriate cases, it may be necessary to examine the proof of evidence and other materials the prosecution sought to rely on in establishing the guilt of an accused person.”PER O.ADEJUMO, J.C.A.

NO CASE SUBMISSION – PURPORT OF A NO CASE SUBMISSION

“It is a well known rule of criminal practice that in a criminal practice, that in a criminal trial at the close of the case for the prosecution, a submission of no prima facie case to answer made on behalf of an accused person postulates one of two things or both of them at once. Firstly, such a submission postulates that there has been throughout the trial no legally admissible evidence at all against the accused person on behalf of whom the submission has been made linking him in any way with the commission of the offence with which he has been charged, which would necessitate his being called upon for his defence. Secondly, as has been so eloquently submitted by Chief Awolowo, that whatever evidence there was which might have linked the accused person with the offence has been so discredited that no reasonable court can be called upon to act on it as establishing criminal guilt on the accused person concerned; and in the case of a trial by jury, that the case ought therefore to be withdrawn from the jury and ought not to go to them for a verdict.”PER O. ADEJUMO, J.C.A.

EFFECT OF A REPEALED LAW ON AN ACTION –AN ACTION WHICH CARRIES A REPEALED LAW SUBSIST EVEN AFTER A REPEAL OF THE LEGISLATION

“It is therefore settled that an action or an operation carried a repealed law subsists even after a repeal of the legislation.” PER O.ADEJUMO, J.C.A.

ADMISSIBLE EVIDENCE – DUTY OF THE COURT TO RULE IF THERE IS ANY SCINTILLA OF EVIDENCE LINKING THE ACCUSED PERSON TO THE CRIME

“Upon a perusal of evidence contained in the record books, there is legally admissible evidence from the documents presented. It is not for the court at this stage to examine in-depth evidence at this stage but solely to rule if there is any scintilla of evidence linking the accused person. See Togo & Anor V. COP (2007) 12 NWLR (Pt.1049) 525; Ajidagba v. IGP (1958) SCNLR 60; ABACHA V. STATE (2002) 11 NWLR (Pt.779) 437”. PER O.ADEJUMO, J.C.A.

OFFENCE OF CONSPIRACY – TWO PERSONS ARE REQUIRED TO ENTER INTO AN AGREEMENT TO AN UNLAWFUL ACT IN AN OFFENCE OF CONSPIRACY

“In an offence of conspiracy, at least two persons are required to enter into an agreement to an unlawful act; one person cannot conspire with himself. The agreement between them is the consent to carry out the unlawful act or lawful act in an unlawful way. Their covert act must have been translated into an overt act.”PER O. ADEJUMO, J.C.A.

DETERMINATION OF JURISDICTION OF A COURT – IN DETERMINING THE JURISDICTION OF A COURT, THE EXACT LAW VESTING JURISDICTION HAS TO BE APPLIED

“Jurisdiction is an exact law that has to be applied exactly to any given case – see Onwudiwe V. FRN (2006) 10 NWLR (Pt.988) 382, where Tobi, JSC, added –
“It is either a Court has Jurisdiction in a matter or it has not. In the determination of a jurisdiction of a Court, the enabling law vesting jurisdiction has to be taken in the light of the reliefs or reliefs sought. The moment the relief sought comes within the jurisdiction of the Court as adumbrated by the facts, the Court must assume jurisdiction as it has jurisdiction to do so. – – The reverse position is also correct and it is that the moment the relief sought does not come within the jurisdiction of the Court, as adumbrated by the facts, the Court must reject jurisdiction as it has no jurisdiction in the matter. To that extent, jurisdiction looks almost like an exact formula in calculus, although it is devoid of actual figures and numbers”. PER A.A.AUGIE,J.C.A.

ADMIRALTY JURISDICTION – ORIGIN OF ADMIRALTY JURISDICTION

“The history of admiralty jurisdiction was adumbrated in Aluminium Manufacturing Company Nigeria Ltd V. NPA (supra), Per Obaseki JSC stated thus:
“What is Admiralty jurisdiction? The origin of the admiralty jurisdiction in England can be traced to ancient times. The jurisdiction of the admiralty court in respect of offences committed upon the high seas is rooted in ancient times. PER O. ADEJUMO, J.C.A.

PROSECUTION OF OFFENCES –TIME DOES NOT RUN AGAINST THE STATE WITH REGARDS THE PROSECUTION OF OFFENCES

“It is trite that time does not run against the State with regards the prosecution of offences. See Orgi V. FRN (2007) 13 NWLR (Pt.1050) 58 at 94; Kalango v Gov. Bayelsa State (2002) 17 NWLR (Pt.797) 617. In Aremu V. Adekanye (2004) 13 NWLR (PT.891) 972, the Supreme Court held as follows:-
“The legal position is that the applicable law to a cause of action is the law prevailing at the time the cause of action arose notwithstanding that that law has been revoked at the time the action is being tried. See also Uwaifo V. AG. Bendel State (1982) 7 SC 124.” PER O.ADEJUMO, J.C.A.

PRIMA FACIE CASE – A PRIMA FACIE CASE HAS BEEN MADE WHERE THERE IS A GROUND FOR PROCEEDING WITH THE CASE

“There is a ground for proceeding with the case and it can be safely said that a prima facie case has been made. In other words, it may be concluded that something has been produced to make it worthwhile to continue with the proceedings. See Ugbane V. FRN (2010) LPELR-4945 (CA); Duru v. Nwosu (1984) 1 NWLR (Pt.113) 24 at 43; Okoro V. State (1988) 5 NWLR (Pt.94) 225”.PER O.ADEJUMO, J.C.A.

TRIAL AND CONVICTION OF AN ACCUSED PERSON UNDER A WRONG OR NON-EXISTENT LAW – WHERE THERE IS AN EXTANT LAW WHICH ADEQUATELY COVERS AN OFFENCE FOR WHICH AN ACCUSED PERSON IS CHARGED UNDER A WRONG OR NON-EXISTENT LAW, A TRIAL AND CONVICTION THEREFROM SHALL

“Where a person is charged for an offence under a wrong to or a non-existent law and there is an extant law which adequately covers that offence, a trial and conviction therefrom shall not be vitiated by such error or omission as this will amount to standing on the pedestal of technicality to knock justice on the face. See Egunjobi v FRN (2012) 3 NWLR (Pt.1342) 534; Olatunbosu V. State (2013) 34 WRN 1. In Ogbomor V. State (1985) 1 NWLR (PT.2) 223 at 233, the Supreme Court held:
“A combined reading of the provision of Section 33(8) and Section 33(12) of the Constitution 1979 suggest that whereas no person can be tried and convicted of an offence which did not exist at the time of his commission or which is not contained in an existing law, there is Constitutional or other prohibition against that and conviction of a person for an offence which is known to the law and is in existence at the time of its commission but the relevant statute of which has been here, incorrectly stated. Thus it is clear that a mere misdiscription of the law under which a charge is being brought, does not necessarily render the offence charged not known to law at the time of its commission. Hence as long as the offence charged discloses an offence in a written law and such law is in existence at the time of the commission or omission of the act alleged in the charge was done the information is valid and is merely defective if there is any misdescription of the law under which the charge laid”. See Okoh V State (2013) LPELR (291009) CA”. PER O.ADEJUMO, J.C.A.

ESTABLISHING A PRIMA FACIE CASE – A PRIMA FACIE CASE IS ESTABLISHED WHERE IF UNCONTRADICTED AND BELIEVED, WILL SUFFICIENTLY PROVE THE CASE AGAINST THE ACCUSED PERSON

“The proof of evidence discloses a prima facie case when it is such that if un-contradicted and if believed, will be sufficient to prove the case against the accused and where there is ground to proceed, it is said that a prima facie case has been established. See Ugbane v. FRN (2010) LPELR 4945 and Okoro v. State (1988) 5 NWLR (PT.94) 225.”PER O.ADEJUMO, J.C.A.

ADMIRALTY JURISDICTION – GUIDELINES FOR DETERMINING THE SCOPE AND EXTENT OF THE ADMIRALTY JURISDICTION OF THE HIGH COURT

“In Aluminum Manufacturing Co. Ltd V. NPA [1987] NWLR (Pt.51) 475, in providing general guidelines for determining the scope and extent of the admiralty jurisdiction of the then High Courts, the Court, PER OPUTA JSC held:
“On what does the Jurisdiction of the admiralty court depend? It does not depend on the fact that something has taken place on the high sea. That it happened there is no doubt, irrespective of statute, a necessary condition for the Jurisdiction of the Admiralty Court, but there is the further question, what is the subject matter of that what has happened on the high sea? It is not everything which take place on the high sea which is within the jurisdiction of the admiralty court … You have to consider three things – the locality, the subject matter of complaint and the person with regard to whom the complaint is made…”PER O.ADEJUMO, J.C.A.

OBTAINING BY FALSE PRETENCE – INGREDIENTS OF OBTAINING BY FALSE PRETENCE

See Amadi V. FRN (2008) 18 NWLR (Pt.1119) 259; Onwudiwe V. FRN (2006) 10 NWLR (988) 382; Oshin v. IGP (1961) 1 SCNLR 40 where the court listed the ingredients of obtaining by false pretence thus: (a) that there was a pretence; (b) that the pretence emanated from the Defendants (c) that it was false; (d) that the Defendants knew of the falsity or did not believe in its truth; (e) that there was an intention to defraud; (f) that the thing is capable of being stolen and (g) that the Defendants induced the owner to transfer the property.”PER O.ADEJUMO, J.C.A.

EXPRESSIO UNIS EXCLUSIO ALTERIUS- PRINCIPLE OF EXPRESSIO UNIS EXCLUSIO ALTERIUS

“It is trite law, based on the principle of “expression unis exclusion alterius”, that the express and unambiguous mention of one thing in a statutory provision, automatically excludes any other which otherwise would have applied by implication with regard to the same issue. See Donbraye &Anor V Preyor &Ors (2014) LPELR – 22286; Egeonu V INEC &Ors (2014) LPELR – 22868 (CA)”.PER O.ADEJUMO, J.C.A.

DETERMINATION OF JURISDICTION OF A TRIAL COURT – IN DETERMINING WHETHER OR NOT THE TRIAL COURT CAN EXERCISE JURISDICTION FOR THE OFFENCE OF UTTERING A FALSE DOCUMENT, THE CHARACTER OF THE DOCUMENT IS IMMATERIAL.

“For the purpose of determining whether or not the trial court can exercise jurisdiction especially as it affects the instant case, the character of the document is immaterial. See Eze v FRN [1987] 1 NWLR (Pt.51) 506 (SC) particularly the dictum of Niki Tobi JSC thus:
“What really was the complaint against the appellant? It is uttering a false document. If any person knowingly and fraudulently utters a false document, he commits an offence under Section 468 of the Criminal Code. The nature of the document forged or falsified may go to punishments but it is otherwise immaterial to the offence disclosed… In other words, in determining jurisdiction in regard to the offence or offences charged in the Information, the character and nature of the document alleged to be falsified and uttered is irrelevant. But in determining the punishment, then the nature and the character of document become most material.”PER O. ADEJUMO, J.C.A.

OFFENCE OF FORGERY – INGREDIENTS THE PROSECUTION MUST PROVE IN AN OFFENCE OF FORGERY AND UTTERING A FALSE DOCUMENT

“On the offence of forgery and uttering of a false document, what the prosecution needs to prove is as stated in Odiawa V. FRN (2008) LPELR 4230 (CA); Alake vs State (1991) 7 NWLR (Pt.205) 567 thus:
“The offences of forgery and uttering have been defined in Section 467(2)(c) of the Criminal Code. Their ingredients are:
a. That the accused utters or forges a document.
b. That he knew the document to be false.
c. That he presented the said document to the other party with the intention that it could be acted upon.
d. That the document was acted upon by the other party to his determent (the 4th ingredient is not always necessary to prove once the other 3 have been established).PER O.ADEJUMO, J.C.A.

CRIMINAL TRIAL – INSTANCES WHERE A CASE TO ANSWER IS MADE OUT

“If the evidence laid before the court is such that a reasonable court or tribunal might convict on it, then there is a case to answer. See Mohammed V. The State (2007) 7 NWLR (PT.1032) 152 SC.”PER O.ADEJUMO, J.C.A.

PROOF OF THE OFFENCE OF CONSPIRACY – INGREDIENTS A PROSECUTION MUST PROVE IN THE OFFENCE OF CONSPIRACY

“To prove the offence of conspiracy, the Supreme Court in Yakubu V. The State (2014) LPELR-2240 enumerated the ingredients required of the prosecution to prove the offence. PER Kekere-Ekun, JSC at page 12, PARAS. E-G held:
“To prove conspiracy, the prosecution must prove the following:-
i. An agreement between two or more persons to do or cause to be done, some illegal act or some act which is not illegal by illegal means.
ii. Where the agreement is other than an agreement to commit an offence that some act beside the agreement was done by one or more of the parties in furtherance of the agreement.
iii. Specifically that each of the accused persons individually participated in the conspiracy”. PER O.ADEJUMO, J.C.A.

JURISDICTION OF THE FEDERAL HIGH COURT – EXTENT OF THE EXCLUSIVE JURISDICTION OF THE FEDERAL HIGH COURT

“The exclusivity of the jurisdiction of the Federal High Court is not limited to the civil aspects of the items listed in Section 251(1); it evidently extends to the criminal jurisdiction of the court in respect thereof”. PER O.ADEJUMO, J.C.A

OFFENCE OF POSSESSION OF DOCUMENTS CONTAINING FALSE PRETENCES –WHEN IS THE OFFENCE OF POSSESSION OF DOCUMENTS CONTAINING FALSE PRETENCES COMPLETE

“The offence of possession of documents containing false pretences is a question of fact. In other words once documents containing false pretences, as defined above are found in the possession or constructive possession of a person who may not necessarily be the author, the offence is complete. The offence of uttering is also akin to that of forgery.”PER O.ADEJUMO, J.C.A.

PROOF OF CONSPIRACY – CONSPIRACY IS PROVED BY CIRCUMSTANTIAL EVIDENCE

“It is settled law that conspiracy is seldom proved by direct evidence but by circumstantial evidence. The actual agreement alone constitutes the offence and it is not necessary to prove that the act has in fact been committed. See Yakubu V State (supra); Obiakor V. The State (2002) 6 SC (Part II) 33 at 39-40”. PER O.ADEJUMO, J.C.A.

CASES CITED

STATUTES REFERRED TO

Administration of Justice Law of Lagos State

Admiralty Jurisdiction Act 1991

Constitution of the Federal Republic of Nigeria, 1999 (as amended)

Criminal Code Law of 2011

Criminal Procedure Act

Interpretation Act

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