3PLR – ABBAS V. COP
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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ABBAS
V.
COP
COURT OF APPEAL (KADUNA DIVISION)
CA/K/6/97
MONDAY, 21ST SEPTEMBER, 1998
3PLR/1998/2 (CA)
OTHER CITATIONS
12 NWLR (Pt. 577) 308
BEFORE THEIR LORDSHIPS:
UMARU ABDULLAHI. J.C.A. (Presided)
ATINUKE OMOBONIKE IGE. J.C.A.
IBRAHIM TANKO MUHAMMAD, J.C.A. (Read the Leading Judgment)
BETWEEN
- ALHAJI GARBA ABBAS
- ALHAJI YAKUBU JIBRIN
AND
- COMMISSIONER OF POLICE, KANO STATE
- CHAIRMAN, HAJJ AFFAIRS TRIBUNAL/CHIEF MAGISTRATE’S COURT,
5, GYADI-GYADI, KANO
REPRESENTATION
E.O. Ekpo – for the Appellants
M.L. Ibrahim – (Director of Public Prosecution, Kano State) – for the Respondents
MAIN ISSUES
CONSTITUTIONAL LAW – Federal High Court-Jurisdiction of in respect of civil and criminal matters – Nature of both jurisdictions – Distinction between – Section 230(1) of the 1979 Constitution as amended by Decree 107 of 1993 vis-à-vis section 230(IA) of same.
CONSTITUTIONAL LAW – Federal offence – Meaning of – Section 250(3) of the 1979 Constitution of Nigeria.
CONSTITUTIONAL LAW – State court – Jurisdiction of to try Federal offences – Section 250(1)(6) of the 1979 Constitution.
COURT – Federal High Court – Jurisdiction of in respect of civil and criminal matters – Nature and scope of – Sections 230(1) and 230(IA) of the 1979 Constitution (as amended by Decree 107 of 1993).
COURT – Jurisdiction of court – Fundamental nature of – Basis of -Whether can be expanded by the court – Extent of power of court in respect thereof.
COURT – Magistrate’s Court – Territorial jurisdiction of.
COURT – Magistrate’s Court- Power of to try an offence contrary to the Passport (Miscellaneous Provisions) Act.
COURT – State court – Jurisdiction of to try Federal offences – Section 250(/)(6) of the 1979 Constitution.
JURISDICTION – Federal High Court – Jurisdiction of in respect of civil and criminal matters – Nature and scope of – Sections 230(1) and 230(1A) of the 1979 Constitution (as amended by Decree 107 of 1993).
JURISDICTION-Jurisdiction of court – Fundamental nature of- Basis of- Whether can be expanded by the court – Extent of power of court in respect thereof.
JURISDICTION – Magistrate’s Court – Territorial jurisdiction of.
JURISDICTION – Magistrate’s Court- Power of to try an offence contrary to the Passport (Miscellaneous Provisions Act.
PRINCIPLES OF INTERPRETATION – Clear and unambiguous words – How’ interpreted – Whether requires any importation.
INTERPRETATION OF STATUTES – Passport (Miscellaneous Provisions) Act. Cap. 343 Laws of the Federation of Nigeria. 1990 – Power of Magistrate’s Court to try an offence thereunder – Whether extant – Section 5(3) thereof.
WORDS AND PHRASES – “Federal offence “- Meaning of – Section 250(3) of the 1979 Constitution.
PRACTICE AND PROCEDURE – JURISDICTION – State court – Jurisdiction of to try Federal offences – Section 250(1)(6) of the 1979 Constitution.
MAIN JUDGEMENT
MUHAMMAD, J.C.A, (Delivering the Leading Judgment):
The allegation against the 1st appellant, Alhaji Garba Abbas, former Comptroller-General of the Nigerian Immigration and three others was for “dishonest recommendation contrary to section 2(1) & (2) of Passport (Miscellaneous Provisions) Act No. 15 of 1989.” The appellants were charged on a First Information Report (F.I.R) and arraigned accordingly before the Kano State Hajj Affairs Tribunal sitting at Chief Magistrate Court 5 Gyadi-Gyadi Kano and presided by the resident Chief Magistrate of that court. Meanwhile, before the commencement of hearing of the case by the Haj j Tribunal, two applications were, with the leave of High Court of Justice No. 3 of Kano State, filed. The first application was seeking to amend the title of the substantive application by the addition of “The Chief Magistrate Court 5, Gyadi-Gyadi, Kano.” The other application was for an order prohibiting the 2nd respondent from proceeding into hearing of the case No. KA/CMC/5/15/96. Both applications were taken by the learned trial, Judge Saka Yusuf, J., on the 25/11/96. He granted the application for amending the title of the substantive application and reserved ruling on the other one. On the 9/12/96, the Judge delivered his ruling in which he dismissed the application for an order of prohibition on the 2nd respondent from proceeding to hear case No. KA/CMC/5/15/96. It is against this ruling that the appellants appealed to this court. In their notice of appeal, the appellants filed four grounds of appeal and prayed this court to set aside the ruling of the trial court.
In their respective briefs which were duly filed and exchanged, learned counsel for the parties formulated issues for our consideration. The learned counsel for the appellants formulated the following issues:
“(a). Whether having regard to the First Information Report (FIR) laid before the 2nd respondent which clearly alleged that the appellants committed the offence alleged ‘between November 1992 and January 1995 at the passport office Abuja,” the High Court was correct in holding that the said second respondent had territorial jurisdiction to try the appellants in Kano. (Ground A).
(b) Whether it was proper for the High Court to have gone outside the FIR wherewith the appellants were arraigned:
- In reaching its holding that the FIR was laid before a Chief Magistrate Court and not the Haji Affairs Tribunal.
- In making findings of fact that the offence alleged had territorial connection with Kano State. (Grounds B & C).
(c) Even if the answer to issues (a) & (b) are determined against the appellants, whether, in view of section 230 (1)(i) and 230(IA), Constitution of Federal Republic of Nigeria, 1979 and section 2 (1), Passport (Miscellaneous Provisions) Decree, it was proper for the High Court to uphold the jurisdiction of the second respondent to try the appellants. (Ground D)..”
The learned counsel for the respondents formulated the following issue:
“Whether having regard to section (sic) 2 and 5 sub-section 3 of the Passport (Miscellaneous Provisions) Act No. 15 of 1989, the court was right in refusing the application for an order of prohibition against the jurisdiction of the 2nd respondent.”
The submission of learned counsel for the appellants, both in his main brief and the reply, is. that having regard to the allegation contained in the First Information Report (FIR), the lower court could have granted the order prohibiting the trial court, whether as a Chief Magistrate Court or as a Hajj Tribunal, from proceeding to hear the case as from the nature of the allegation such a court lacked jurisdiction to try the offence, as the offence, according to learned counsel, was committed “at passport office Abuja” and nothing suggested that the appellants had confederates pursuant to an illegal agreement or that consequences of the offence ensued in Kano. Learned counsel argued further that the lower court ought to have prohibited the 2nd respondent on the basis that the jurisdiction of every Magistrate is limited to his State. On issue number two, learned counsel for the appellants argued that the lower court was wrong in not granting the prohibition order to the trial court as the latter lacked territorial jurisdiction whether as Magistrate Court or a tribunal. Both the offence and the consequence of the dishonest recommendation took place in Abuja. He argued further that the subsequent journey of the passports to Kano was certainly not a consequence of a dishonest recommendation within the meaning of section 134(b) of the Criminal Procedure Code. While arguing the third issue, learned counsel submitted that it was only the Federal High Court that had exclusive jurisdiction on the matter in view of the amendment introduced by section 230(IA) of Decree 107 of 1993, provisions of section 5(3) of the Passport (Miscellaneous Provisions) Act notwithstanding. He finally submitted that the Hajj Affairs Tribunal created by an Edict of the Kano State could not try a Federal offence with which the appellants were charged and would be inconsistent with the 1979 Constitution.
Learned counsel for the respondents submitted that the lower court was right in refusing to grant an order of prohibition against the jurisdiction of 2nd respondent and that the jurisdiction of 2nd respondent was conferred on him by law in his capacity as a Chief Magistrate and not as Hajj Affairs Tribunal Chairman. He cited section 5(3) of the Passport (Miscellaneous Provisions) Act. He also cited and relied on section 4 of the Penal Code. The two statutes confer jurisdiction on the Chief Magistrate over the appellants. Learned counsel argued further that section 230(1) of the 1979 Constitution as amended by Decree 107 of 1993 does not conflict with the two statutes referred to above and the section does not confer exclusive jurisdiction on the Federal High Court. He urged this court to dismiss the appeal.
Learned counsel for the appellants filed a reply brief in which he answered some points on the jurisdiction of the Federal High Court as conferred by section 230 of the Constitution of the Federation 1979 and amended by Decree 107 of 1993. On criminal jurisdiction of the Federal High Court, learned counsel cited section 7 of the Federal High Court Act as amended by Decree 60 of 1991. Now from the totality of what the record of appeal and counsel’s submissions contain, the bone of contention in this appeal is jurisdiction of the trial court over the persons alleged to have committed the offence of dishonest recommendation and the subject matter of the offence. Let me start by reiterating the legal point that jurisdiction is the spinal cord of a court of law. A court can only act legally and validly when it has jurisdiction over the person and subject matter brought before it. Where it lacks jurisdiction, it also lacks competence over the person and subject matter brought before it. If the court may decide to close its eyes over the issue of jurisdiction, it may end up issuing futile and inexecutable orders. Thus, issue of jurisdiction is basic. In other words, any judgment however well written if given without it is no judgment at all as such judgment creates no legal obligation nor does it confer any right on any of the parties to the suit. See: Barclays Bank v. CBN (1976) 6 SC 175; Tukur v. Governor of Gongola State (1989) 4 NWLR (Pt. 117) 517; Bakare v. A. G. Federation (1990) 5 NWLR (Pt. 152) 516; State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33; Matari v. Dangaladima (1993) 3 NWLR (Pt. 281) 266; Ajayi v. Military Administrator of Ondo State (1997) 5 NWLR (Pt. 504) 237.
The issue in the appeal on hand is that the Kano State Police Command filed a First Information Report (FIR) against the appellants alleging that they committed an offence of “dishonest recommendation contrary to the Passport Act.” Learned counsel for the appellants urged the lower court to prohibit the Magistrate’s Court (the trial court) from hearing the case as it had no jurisdiction on the persons, the subject matter and territory. The lower court however found that as the FIR was filed before a Chief Magistrate Court, and that the alleged passports involved were transported to Kano, the trial court had jurisdiction to hear the case and so ordered accordingly.
The main contention of appellants’ learned counsel in issue number one is whether the trial court has territorial jurisdiction to try the appellants. It is pertinent to state in this regard that the territorial jurisdiction of a particular Magistrate’s
Court is the area of authority denoted by law for that court within a given State of the Federation of Nigeria. Generally, however, the position of a court of law vis-à-vis the jurisdiction it is conferred to exercise is as has been beautifully summarized by my learned brother Abdullahi J.C.A, with whom I concurred in the case of Government of Kwara State v. Gafar (1997)7 NWLR (Pt. 511) 51 at pages 63-64 paragraphs H-A where he stated:
“There is no doubt that courts are creatures of statutes and it is the statute that created a particular court that will also confer on it its jurisdiction. They may be extended, not by the courts, but by the legislature, for it is part of interpretation functions of the courts to expound the jurisdiction of the court but not to expand it.”
It cannot be overemphasized that Magistrate’s Court is a creation of statute, as such it can do only those things which the particular statute authorizes it to do. In respect of this appeal which is criminal in nature, section 5(3) of the Passport (Miscellaneous Provisions) Act of 1985, Cap. 343, Laws of the Federation of Nigeria 1990, which creates the offence, stipulates that:
“(3) – An offence under this Act shall be triable in a Magistrate’s Court.” There is no dispute that the offence with which the appellants were charged is a Federal offence. A ‘Federal offence’ is an offence contrary to the provisions of an Act of the National Assembly or any law having effect as if so enacted. (See section 250 (3) of the 1979 Constitution.) On whether a State court has any jurisdiction to try a federal offence, same section of the same Constitution referred to above has provided as follows:-
“250(1)(b) Whereby the Law of a State jurisdiction is conferred upon any court for the investigation, inquiry into, or trial of persons accused of offences against the Laws of the State and with respect to the hearing and determination of appeals arising out of any such trial or out of any proceedings connected therewith, the court shall have like jurisdiction with respect to the investigation, inquiry into, or trial of persons for Federal offences and the hearing and determination of appeals arising out of the trial or proceedings…”
Thus, armed with these provisions alone, the trial court, in my view, has jurisdiction over the case. The lower court was therefore right in refusing to grant an order of prohibition on the proceeding before the trial court.
The second issue is on “error and consequence of jurisdictional enquiry outside the First Information Report.” By this, the learned counsel for the appellants referred to the error committed by addressing the FIR to the Kano State Hajj Affairs Tribunal. It was his contention further that the lower court was in difficulty in reaching a conclusion as to which court the FIR was “directed” and the one to which it was “addressed.”
Now let me quickly remind us that a First Information Report (FIR) is an information contained in a special form so called, drafted by the police authority alleging that a particular individual or individuals has/have committed a criminal offence which is punishable by law. It is the commonest form of initiating a criminal proceeding in the Magistrate’s Court. The holding of the learned Judge of the lower court read as follows:
“…. it is apparent from FIR (Exhibit `A’) that the court to which the trial was directed is court 5 Gyadi-Gyadi Kano. This is a Chief Magistrate’s Court and not Hajj Affairs Tribunal.”
This holding in my view is clear. It carries no difficulty with it. Now, even for the sake of argument and granted that the FIR was indeed filed before the Kano State Hajj Affairs Tribunal (the tribunal), it must be understood that the tribunal was specially created to take care of some specific offences in Kano State. It cannot therefore be regarded to be a court possessed of the conventional criminal jurisdiction to try offences created by other statutes, Federal or State. It is my view therefore that the argument that the appellants were intended to be arraigned before the tribunal was fallacious. In ordinary judicial convention, FIRS are filed before Magistrate’s Courts of a given territorial jurisdiction for arraignment of persons alleged to have committed some offences. Accordingly, I agree with the lower court the FIR was meant to be taken by the trial court in its capacity as a magistrate’s Court.
The third issue on the trial court’s jurisdiction over the subject matter. The submission of learned counsel for the appellants is that by the provisions of section 230 (1) (i) of the 1979 Constitution as amended by Decree 107 of 1993 and section 7 of the Federal High Court Act (as amended by Decree 60 of 1991), it is only the Federal High Court that has exclusive jurisdiction to try the offence alleged. However, the learned DPP for the respondents submitted that section 230 of the 1979 Constitution (as amended) is not in conflict with section 5 (3) of the Passport Act and does not confer exclusive jurisdiction on the Federal High Court.
I have carefully considered the provisions of section 230 (1) and (1A) of the Constitution of the Federation 1979 (as amended by Decree 107 of 1993) and section 7 of the Federal High Court (Amendment) Decree No. 60 of 1991. I am of the view that none of the sections above conferred exclusive jurisdiction on criminal matters or causes. For the avoidance of doubt, section 230(1) states:-
“230(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from …”
In subparagraphs (a)-(q) of the section, mention is made of some civil causes or matters upon which the Federal High Court shall exercise exclusive jurisdiction. But in section 230 (IA), it is stated as follows:
“230 (IA)The Federal High Court shall also have and exercise jurisdiction and powers in respect of treason and the criminal causes or matters in respect of which jurisdiction is conferred by subsection (1) of this section.”
This is the section that confers criminal jurisdiction on the Federal High Court. The words used in the section are clear and unambiguous. They can easily be understood through the literal rule of interpretation. They require no importation. The legal effect of the section, in my view, is that it confers no exclusive jurisdiction on the Federal High Court in criminal causes specified therein. In other words, criminal matters can concurrently be tried by either the Federal High Court or other courts conferred with criminal jurisdiction over the subject matter in dispute #In this appeal, we already have seen that the offence alleged to have been committed by the appellants is, by the provision of section 5 (3) of the Passport Act, triable by a Magistrate’s Court. I hold accordingly that the trial court has jurisdiction to try the appellants on the offence alleged.
I would want to emphasize however that the provisions which confer jurisdiction on the Federal High Court generally are no more ambiguous. The issue of exclusivity or concurrence of jurisdiction has long been expounded by the courts. It shall therefore be futile for any counsel to try to import into the provisions which enable the Federal High Court to exercise jurisdiction over specified matters, words or phrases that are neither provided for nor intended by the lawmakers. See: NNPC v. Okwor (1998) 7 NWLR (Pt. 559) 637; EgyptAir v. Abdullahi (1997) 11 NWLR (Pt. 528) 179; Sudan Airways Co. Ltd. v. Abdullahi (1998) 1 NWLR (Pt. 532) 136; Ali v. CBN (1997) 4 NWLR (Pt. 498) 192; Govt. of Kwara State v. Gafar (supra).
Finally, I find no merit in the appeal and it is hereby dismissed. I affirm the decision of the lower court in refusing to grant an order of prohibition from proceeding to hear case No. KA/CMC/5/15/96. Accordingly, the Chief Magistrate Court 5, Gyadi-Gyadi shall proceed to hear the case.
ABDULLAH, J.C.A: I had the benefit of a preview of the judgment just delivered by my learned brother Muhammad J.C.A.
I agree with all the reasons given and the conclusion reached. I adopt them as mine. I abide by all the consequential orders made therein.
IGE, J.C.A.: I agree
Appeal dismissed.
