PROSECUTORIAL POWERS OF THE ECONOMIC AND FINANCIAL CRIMES COMMISION

CASE TITLE: FRANK AMAH v. FEDERAL REPUBLIC OF NIGERIA (2019) LPELR-46347(SC)

JUDGMENT DATE: 11TH JANUARY, 2019.

PRACTICE AREA: CRIMINAL LAW AND PROCEDURE

LEAD JUDGMENT: KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

SUMMARY OF JUDGMENT

INTRODUCTION:

This appeal borders on Criminal Law and Procedure.  

FACTS:

This is an appeal against the decision of the Court of Appeal sitting in Lagos.

The prosecution’s case at the High Court was that sometime in February 2005, the appellant, who was the 1st accused at the High Court, procured the services of one Mrs. Julie Adinuba (PW8) to assist him in selling some Federal Government houses at Ikoyi in Lagos State. He showed PW8 some letters of allocation issued by the Federal Government Implementation Committee for the sale of Federal Government landed property and gave her photocopies of the letters to enable her convince prospective buyers of the genuineness of the offer. PW8 contacted one Gordon Omoegbedi (PW7), an Estate Surveyor, to assist in establishing the genuineness of the allocation letters. Upon being satisfied that the allocation letters were genuine, they both began to look for buyers.

PW8 approached one Donatus Duru (PW3) who showed an interest in purchasing one of the properties. PW8 and PW7 took PW3 to the appellant’s house and he confirmed the genuineness of the letters by showing them original copies of about 15 allocation letters. PW3 indicated his interest in No. 7 Bell Avenue, Ikoyi, which was allocated to one Alhaji Abubakar Mallam of 2A Sangiwa Street, Kano. The appellant allegedly explained to PW3 that the said Alhaji Abubakar Mallam was a friend of his and a serving Deputy Comptroller of Customs aspiring to be appointed as the Comptroller General of Customs. PW3 was convinced and agreed to purchase the house for N190,000,000.00 (One Hundred and Ninety Million Naira only). PW3 insisted on consulting a lawyer before concluding the transaction. He rejected the initial request to pay the purchase price in cash. 

It became necessary to adjust the purchase price after a miscalculation was detected in the allocation letter. They agreed that the proper calculation of the cost was N87,600,000.00 (Eighty-seven Million Six Hundred Thousand Naira only). It was agreed that the error would be corrected before any payment was made. It was also agreed that PW3 would pay N190 Million to Alhaji Abubakar Mallam, the allottee, by bank draft but said payment would be made through the 2nd accused, CHYFRANK NIG. PLC. It was also agreed, inter alia, that the appellant would issue separate drafts for the sums due to the Federal Government. The Appellant subsequently informed PW3 that all the agreed pre-conditions had been complied with.PW3 therefore instructed his lawyer (PW1) to proceed with the transaction.

Shortly after the conclusion of the transaction, the Federal Government cancelled the sale of Federal Government Houses in Ikoyi and published the names of the affected allottees, advising them to go and collect a refund of their money. To his surprise, PW4, Alhaji Abubakar Mallam, saw his name published in the daily newspapers as one of the allottees entitled to a refund. He wrote petitions to various government agencies complaining that his name had been used fraudulently to purchase a Federal Government property in Ikoyi. This reaction was published in one of the daily newspapers. It caught the attention of PW1 and PW3 who immediately contacted the appellant. He allegedly tried to reassure them by stating that Abubakar Mallam’s reaction was understandable since, as an aspiring Comptroller General of Customs, he would not wish to jeopardise his job.

They were not satisfied with his explanation and reported the matter to the Economic and Financial Crimes Commission (EFCC). According to the prosecution, in the course of investigation, the EFCC discovered that N102,400,000.00 collected by the appellant through the account of CHYFRANK NIG. PLC (2nd accused) was not paid to Alhaji Abubakar Mallam as agreed. Rather, N94,800.000.00 was used to purchase a house at 22 Thompson Avenue, Ikoyi, Lagos from the Federal Government Implementation Committee, while part of the balance was used to buy shares for his children, cars and other items.

At the conclusion of the investigation the accused persons were arraigned before the Lagos State High Court on a six-count charge. At the trial, the prosecution called 6 witnesses and tendered exhibits.  Some exhibits were also tendered by the defence during cross-examination of the prosecution’s witnesses. At the conclusion of the prosecution’s case, learned counsel for the accused persons made a no-case submission. In a considered ruling delivered on 14/10/2009, the learned trial Judge, M. O. OBADINA, J., upheld the submission and acquitted and discharged the accused persons on all the six counts. 

Aggrieved by this decision, the respondent (at the Supreme Court) lodged an appeal at the Court of Appeal, Lagos Division. In its judgment dated 27/2/2015, the Court allowed the appeal in part. It affirmed the findings of the High Court on counts 1, 2, 3 & 4 but set aside its decision in respect of counts 5 & 6. The case was remitted to the Hon. Chief Judge of Lagos State for reassignment to another Judge of the High Court for the retrial of the respondents on counts 5 & 6. Dissatisfied, the 1st respondent (appellant at the Supreme Court) Appealed to the Supreme Court.

ISSUES FOR DETERMINATION:

The Court determined the appeal on the issues couched as follows:

(1) Whether based on provisions of the Constitution of the Federal Republic of Nigeria, Act, 1999 as amended and the EFCC 2004, as well as the decided cases on the issue, the lower Court was not right when it held that the Respondent can prosecute the Appellant for stealing under the Criminal Code of Lagos State.

(2) Whether the Court of Appeal was not right when it overruled the trial Court, that the Respondent has adduced a prima-facie evidence which required some explanations from the Appellant.

DECISION/HELD:

On the whole, the Supreme Court found no merit in the appeal and accordingly dismissed same. The decision of the Court of Appeal was upheld.

RATIOS:

• CRIMINAL LAW AND PROCEDURE – OFFENCE OF STEALING: Elements of offence of stealing
• CRIMINAL LAW AND PROCEDURE – NO CASE SUBMISSION: Position of the law on a no case submission
• EVIDENCE – PRIMA FACIE CASE: When a prima facie case will be said to be made out
• GOVERNMENT AGENCY – ECONOMIC AND FINANCIAL CRIMES COMMISSION: Whether the Economic and Financial Crimes Commission must tender evidence of fiat issued by the Attorney-General to prosecute State offences before the Court can have jurisdiction to entertain same