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FEDERAL REPUBLIC OF NIGERIA
COURT OF APPEAL
25TH JUNE, 2001
13 NWLR (PT. 729) 103.
BEFORE THEIR LORDSHIPS:
GEORGE ADESOLA OGUNTADE, JCA(Presided)
ATINUKE OMOBONIKE IGE, JCA
SULEIMAN GALADIMA, JCA
PIUS OLAYIWOLA ADEREMI, JCA (Delivered the leading judgment)
AMIRU SANUSI, JCA
LORD CHIEF UDENSI IFEGWU
Prof. S. A. Adesanya S. A. N. with him Messrs A. Oduntan, T.O. Elias,
Dr. S. E. Mosugu for the respondent
PRACTICE AND PROCEDURE – APPEAL – Brief writing – reply briefs – whether must deal only with new points arising from the respondent’s brief.
CONSTITUTIONAL LAW – Constitutional provisions – overriding effect of same over any other law or rules of court in a democratic setting.
CONSTITUTIONAL LAW – Crime unknown to Nigerian law – whether an accused person can be convicted of same in view of section 33(8) and (12) of the 1979 Constitution.
CONSTITUTIONAL LAW – Retrospective criminal legislation – accused convicted thereunder – whether constitutional – accused person convicted of acts which occurred partly before the commencement and partly after the commencement of a legislation – propriety of.
CONSTITUTIONAL LAW – Transfer of a case to the Court of Appeal for determination of question of law under section 295(2) of 1999 Constitution – discretionary power of High to transfer such matter suo motu – duty of court to refer such question on the application of any of the parties – whether mandatory.
CONSTITUTIONAL LAW – Transfer of a case to the Court of Appeal for determination of question of law or interpretation of the Constitution – principles guiding the High Court in granting such an application.
CRIMINAL LAW AND PROCEDURE – Crime unknown to any Nigerian law – whether an accused person can be convicted of same in view of section 33(8) and (12) of 1979 Constitution.
CRIMINAL LAW AND PROCEDURE – Offence of fraudulently granting credit facility– whether known to any Nigerian law relating to crime.
CRIMINAL LAW AND PROCEDURE – Retrospective criminal legislation – accused convicted thereunder – whether constitutional – accused person convicted of acts which occurred partly before the commencement and partly after the commencement of a legislation – propriety of.
CRIMINAL LAW AND PROCEDURE – “Fraud” – meaning and weight attached to same in criminal law.
CONSTITUTIONAL LAW – FAIR HEARING – Grant of ex-parte application to transfer a suit by way of case stated – whether amounts to negation of fair hearing.
PRACTICE AND PROCEDURE – Ex-parte application – nature of.
WORD AND PHRASES – Fraud – meaning and weight of in criminal law.
PIUS OLAYIWOLA ADEREMI, JCA, (Delivering the leading judgment): Before the Failed Bank Tribunal Zone II Lagos (now defunct,) the plaintiff was arraigned on a two-count charge which reads as follows:-
Count (1) That you, Lord Chief Udensi Ifegwu (now at large), Jimi Adebisi Lawal (now at large), Jeff Fayomi while being Directors and/or managers of Alpha Merchant Bank Plc. (now in liquidation), at Lagos between 30th June, 1988 and 1st October, 1993 conspired to commit a felony, to wit fraudulently granting credit facilities to Dubic Industries Limited without lawful authority in contravention of rules and regulations of the said Alpha Merchant Bank Plc and the regulatory authorities (CBN/NDIC) and thereby committed an offence punishable under section 516 of the Criminal Code Act, Cap 77 Laws of the Federation 1990 to be read with section 3(1) (b) (c) and (d) of the Failed Banks (Recovery of Debts) and Financial Malpractices Decree, 1994 as amended.”
Count 10 That you, Lord Chief Udensi Ifegwu (now at large/between) 30th June, 1988 and 1st October, 1993 at Lagos while being a director of Alpha Merchant Bank Plc (now in liquidation) and also a Director of Dubic Industries Limited was connected with the granting of credit facilities totaling US $2,962,062.89 (two million, nine hundred and sixty two thousand dollars, eighty-nine cents) now equivalent to N242,889,156.98 (two hundred and forty-two million, eight hundred and eighty-nine thousand, one hundred and fifty-six naira eighty-nine kobo) only to Dubic Industries Limited without declaring your personal interest in the said facility to the board of directors as required by section 18(3) of the Banks and Other Financial Institutions Decree 1991 and thereby committed an offence naira eighty-nine kobo) only to Public Industries Limited without declaring your personal interest in the said facility to the board of directors as required by section 18(3) of the Banks and Other Financial Institutions Decree 1991 and thereby committed an offence punishable under section 18(9) of the same decree.
After hearing the parties and evidence and addresses taken the plaintiff was convicted by the Failed Bank Tribunal on the two-count charge. The plaintiff appealed against the decision of the tribunal to the Special Appeal Tribunal which after a due consideration of the grounds of appeal and the arguments of counsel allowed the appeal only one sentence. According to Prof. Adesanya S.A.N. learned counsel for the plaintiff, his client has since paid the fines. Although, the plaintiff had contended, in his written brief, before this court that he raised for the first time the issue of the constitutionality of his conviction by the Failed Bank Tribunal before the Special Appeal Tribunal, the defendants, through their written brief, denied that assertion. The uncontroverted fact however is that the plaintiff initiated another proceeding before the Federal High Court sitting in Lagos in which he prayed court below to transfer the suit to this (Court of Appeal) by way of case stated pursuant to section 295 (2) of the Constitution of the Federal Republic of Nigeria 1999 which is in pari materia with the provisions of section 259(2) of the 1979 Constitution section 295 (2) provides:
“Where any question as to the interpretation or application of this constitution arises in any proceedings in the Federal High Court or a High Court, and the court is of the opinion that the question involves a substantial question of law, the court may, and shall, if any party to the proceedings so requests, refer the question to the Court of Appeal, and where the question is referred in pursuance to this subsection, the court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision.”
The grounds upon which the application is predicated are:
(1) the suit involves an interpretation of the constitution with a view to determining whether the charges against the plaintiff and the conviction thereafter violate section 33(8) of the Constitution of the Federal Republic of Nigeria 1979 (the then applicable law).
(2) the suit further involves the determination whether count 1 of the two-count charge violates section 33 (12) of the Constitution of the Federal Republic of Nigeria 1979 (the then applicable law).
(3) there has been a pronouncement on the issue challenging the jurisdiction of the Tribunal in regard to ground 1 and the pronouncement of the Special Appeal Tribunal is unclear and does not appear to have addressed the issue.
The court below (Coram Odunowo J.) granted the application on the 27th October, 1999 and consequently the case was referred to this court by way of case stated in terms of their respective briefs: the plaintiff filing his brief of argument on 8th August, 2000 and the reply brief on the 13th of December, 2000, the defendants’ brief of argument was filed on 9th October, 2000. In the plaintiff’s brief of argument, four issues were identified for determination and they are:
(1) Whether there is a crime known to Nigerian law as fraudulently granting credit facilities.
(2) If there is such a crime, whether conviction for fraudulently granting credit facilities violated section 33(12) of the Constitution of the Federal Republic of Nigeria 1979, as amended.
(3) Whether it was constitutional to convict the plaintiff of conspiracy to commit a felony where the fact alleged as amounting to felony occurred in 1991 while the Failed Bank Decree under which the felony was charged commenced on the 9th of November, 1991?
(4) Whether it was proper to convict the plaintiff for counts 1 and 10 under the BOFID as a whole without drawing any line or distinction, when the facts as constituting the crime occurred in part before the commencement of the BOFID and partly after the commencement of the BOFID. In other words is a bullet (sic) conviction in such a case constitutional?
For their part, the defendant through their brief raised three issues of determination and they are as follows:-
(1) was the plaintiff/accused/convict misled during his trial?
(2) did the conviction of the plaintiff contradict the provisions of the 1979 Constitution of the Federal Republic of Nigeria, viz section 33(8) and (12)?
(3) Was the plaintiff’s conviction under the Criminal Code Act and BOFID justified in view of the state of the law?
When this matter came before this court sitting as a full court, Prof. Adesanya S.A.N, learned counsel for the plaintiff referred to and adopted the plaintiff’s brief of argument filed on 8th August,2000 and the reply brief filed on 13th December, 2000. In highlighting the salient points in the brief of his client, the learned S.A.N. submitted that the following facts in this case are not in dispute: that Banks and Other Financial Institutions Decree No 25 of 1991 (otherwise called BOFID) came into force on the 20th of June, 1991, that the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No 18 of 1994 came into effect on the 9th of November, 1994, the facts which constituted the subject-matter of this case are loans granted which are evidenced by deal slips numbering six, three of which came into being before 20th June, 1991 and the other three came into being after 20th June, 1991. He contended that at the time the loans were granted no offence was created by the deal slips. “fraudulently granting credit facilities” is not an offence known to law. The plaintiff, he continued, was convicted on counts 1 and 10 which aggregated the two sets of loans granted. Both the Trial Tribunal and the Special Appeal Tribunal (both now defunct) had no jurisdiction to entertain the case by virtue of the section 33 (8) of the 1979 Constitution. He further reasoned that the two alleged offences ought not to have been lumped together as, according to him, the court cannot combine what is prohibited with what is not prohibited and give a single conviction. Continuing, he said every Tribunal is an inferior body to a court of record and the proper venue to challenge the jurisdiction of an inferior tribunal or court or to quash its decision is the superior court of record which in the instant case, is the Federal High Court; reliance was placed on the decision in A-G. Federation v. Agwuna (1995) 4 NWLR (Pt. 388) 234. He further said that the evidence led relates to the loans granted before June, 1991. The law applicable then was the Banking Act 1969 which carries lesser punishment than that imposed by BOFID but was not applied by the Tribunal. Public policy, he argued, should not defer a court of law, from applying the applicable law; he called in aid the decision in Sonnar Nigeria Ltd. v. Nordwind (1987) 4 NWLR (Pt. 66) 520 at 535. And jurisdiction, he again argued cannot be assumed under the façade of public policy. The action commenced on 1st June, 1999 by which time both the Tribunal and the Special Appeal Tribunal had been abolished by Decree No 62 of 1999, section 3(2) thereof. The proper forum to have arraigned the plaintiff would then be the Federal High Court. While referring to section 5(2) of the Failed Banks (Recovery of Debts and Financial Malpractices in Banks (Decree No 18 of 1994) the tag of finality conferred on the decision of the Special Appeal Tribunal would not apply since, according to him, the Speacial Appeal Tribunal did not have jurisdiction: he referred to the decisions in Nwosu v. Imo State Environmental Sanitation Authority & Ors (1990) 2 NWLR (Pt. 135) 668 at 732 and Anisminic Ltd. v. The Foreign Compensation Commission & Anor. (1969) 1. A. E. R. 208 while urging this court to hold that the Special Appeal Tribunal lacked jurisdiction to convict for an act that did not constitute any offence at the time it was allegedly committed, that the conviction was without jurisdiction and that the proper forum to challenge the jurisdiction of the Tribunal is the Federal High Court he again cited in support the decisions in Udosen v. Necon & Ors. (1997) 5 NWLR (Pt. 506) 570 at 585-586, Ubani v. Director of S.S.S. & Anor. (1999) 11 NWLR (Pt. 625) 129 at 150 and Effion & Anor. v. The Director of Prisons, Nigeria Prisons Service & Anor. (1999) 14 NWLR (Pt. 638) 330.
Dr. Mosugu, learned counsel for the respondents adopted his clients’ brief of argument filed on 9th October, 2000. The reply brief filed on behalf of the plaintiff, he contended, violates the provisions of order 6 rule 5 of the Court of Appeal Rules which allows for the filing of a reply brief by the appellant for the purpose only to react to all new points arising from the respondent’s brief. He, however submitted that the only new point arising from the respondent’s brief was reacted to by plaintiff on page 12 of the plaintiff’s reply brief. Pages 1-11 of the reply brief, he submitted should not be countenanced as they merely elaborate the plaintiff’s brief. Reading the provisions of order 2 rules 1, 2, and 3 of the Court of Appeal Rules in conjunction with section 295 (2) of the 1999 Constitution learned counsel/submitted that the case stated is improper because the defendant was not heard before the reference was made to the Court of Appeal – a requirement of Form 1. He again submitted that there is no substantial question of law involved in this matter as to require reference to the Court of Appeal. The issue of jurisdiction which according to him, is substantial or fundamental had been raised before the Special Appeal Tribunal and it was overruled, there was no more substantial issue of law left relying on Bamaiyi v. A-G of the Federation (2000) 6 NWRL (Pt. 661) 421 Count 1 is a charge rooted in conspiracy under section 156 of the Criminal Act. On the issue of finality learned counsel referred to section 2(4), section 3 (1) and 5(3) of BOFID Decree No 62 of May 28, 1999 and submitted that any decision handed down before the coming into effect of the decree was preserved. The trial and conviction of the plaintiff, he further contended, were in conformity with the Constitution in force at the time. In reply to the complaint of bullet conviction, learned counsel prayed the provisions of section 24(6) of Decree No 18 of 1994 and section 158 of Criminal Procedure Act which relate to joinder of offences and stipulate that non-compliance with the provisions of the decree would not render the decision of the Tribunal a nullity. It was again, his contention that the cases of Animisnic and Nwasu cited in support of the case of the plaintiff are not applicable to the present case. He urged this court to decline answering the questions embedded in the case stated in the alternative, he urged that the questions be answered against the plaintiff.
On points of law only, Prof. Adesanya submitted that section 259 (2) of the Constitution allows the application that led to the present exercise to be brought ex-parte. He further argued that the rule that a party cannot benefit from his own wrong cannot prevail over section 33 of the Constitution.
I have looked at the contents of the argument proffered by the respondents in their brief of argument under the notice of preliminary objection. It is my respectful view that they can all be attended to under the treatment of the issues raised by the two parties. And this I propose to do. But before then, I will like to address the issue whether the present action rooted under case stated is well founded in law. The defendants have in their brief argued that the case stated negates all principles of fair hearing as the defendants were not heard before the reference was made to this court. The plaintiff has contended that the case stated before this court is rooted in constitutionality. Both sides relied on the provisions of order 2 rules 1, 2 and 3 of the Court of Appeal Rules but while the plaintiff relied on section 259(2) of the 1979 Constitution in aid of his contention the defendants do place reliance on the provision of section 295(2) of the 1999 Constitution. The two provisions of the Constitution are however, in pari materia. Hereunder are the provisions of the rules of court referred to by the parties as well as those of the Constitution:
Order 2 rules, 1, 2 and 3 provide
“When a lower court refers any question as to the interpretation of the Constitution under section 259 of the Constitution, or reserves any question of law for the consideration of the court in accordance with any written law, the lower court referring or reserving the question of law, as the case may be shall state a case in Civil Form 1 or 2 in the first schedule to these rules, which ever may be appropriate and the registrar of the lower court shall forward ten copies direct to the registrar.
When the lower court making an application consists of three or more Judges, the case shall be stated on behalf of the lower court by a majority of those Judges.
2(2) Where a question is referred or reserved by the lower court the question shall be signed by all or by a majority of the Judges of the lower court referring or reserving the question.
3(3) A case stated under this order shall be divided into paragraphs, which as near as may be shall be confined to distinct portions of the subject whether facts, point of law, or document and every paragraph shall be unnumbered consecutively …………………..…………… … …… …………………………………………… …………………….………………………….
Section 295(2) of the 1999 Constitution which, is applicable to this case, provides:
“Where any question as to the interpretation of application of this constitution arises in any proceedings in the Federal High Court or a High Court and the court is of the opinion that the question involves a substantial question of law, the court may and shall if any party to the proceedings so requests, refer the question to the Court of Appeal; and where the question is referred in pursuance of this sub-section, the court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision.”
In any democratic setting which upholds the rule of law, the provisions of the constitution which is the grundnorm always override those of any other law or rules. I go further to say that it is trite law that where the provisions of any law or rules of court are inconsistent with those of the Constitution those provisions, to the extent of inconsistency with the provisions of the Constitution are null and void. It is not in controversy that the case stated found its way to this court by virtue of the grant of the application captioned “Motion on Notice” filed in the court below on 12th October, 1999. The application was granted by Odunowo J. on 12th October, 1999. The proceedings before the trial Judge of the court below on 12th October, 1999 show that the defendants were not represented. A careful perusal of the record of proceedings indicates that by affidavit of service the 1st and 2nd defendants show that through hand-writing that they were served with hearing notices.
Hearing notices (two in number) bear the insertion that it was motion on notice that was fixed for hearing on 11th October, 1999. The proceedings of 11th October, 1999 indicate that the defendants were not represented in court. At the request of Mr. Oduntan counsel who appeared for the plaintiff on that day and who informed the court that the application had been served, same was adjourned to 27th October, 1999. On which day the defendants were also recorded as not represented. The application was granted on that day consequent upon which the suit was transferred to this court by way of case stated. It is true that there is no satisfactory evidence that copies of the motion were served on the defendants. In effect, that application was in the form of an ex-parte one when it was granted. An ex-parte application by it’s very nature is one in which the other party is not put on notice before the application is heard and determined by the court. It is often said that an ex-parte application for injunction is, in essence, a violation of the constitutional provisions of fair hearing and the common law principle of audi alteram partem. The application under consideration is not one praying for an order of injunction. It is even milder than that employed in prerogative orders. The facts underlining the application in issue here are not in controversy. And they could not be and indeed they were never added to or subtracted from by the order of 27th October, 1999. In my respectful view, this type of application is one that is necessary to be taken before the commencement of a substantive matter. It cannot be said to be a negation of the principles of fair hearing. I find support for this pronouncement in the case of 7-Up Bottling Co. Ltd v. Abiola & Sons Ltd (1995) 3 NWLR (Pt. 383) 257 where the Supreme Court at page 280 held:
“There is no doubt that the right to fair hearing under the Constitution is synonymous with the common law rules of natural justice. However, because of the nature of certain preliminary steps that have to be taken before the commencement of substantive matters, the rules of court have made provisions of ex-parte applications and there is nothing unconstitutional in such rules.”
As I have said above, the sole purpose of bringing that application before the court below is to get that court to transfer, in its entire package the suit that was before it which, in the view of the applicant, involves a substantial question as to the interpretation of the provision of the Constitution. Whether such an application is granted or not the material facts that ground the suit will not be diminished from section 295(2) of the 1999 Constitution gives directive to the court as to what order to make when faced with such an application. Under it where none of the parties applies for such transfer the court has a discretion to exercise in the matter as to whether to transfer the case or not. But where any of the parties applies for the transfer, it is mandatory that the trial Judge shall refer the question to the Court of Appeal. The question may be asked what are the principles that should guide the High Court in granting an application to refer a question of law or interpretation of the Constitution to the Court of Appeal. Judicial authorities are ad idem that before the High Court can make the reference it must be shown that it (reference) –
(1) involves a substantial question of law;
(2) it must relate to or concern the interpretation or application of the Constitution and
(3) it must have arisen in the proceedings before the court.
See (1) Gamioba & Ors. v. Esezi II & Ors. (1961) 1 All N.L.R. 584 (2) African Newspapers of Nig Ltd v. Fed. Republic of Nig (1985) 2 NWLR (Pt. 6) 137 and (3) Rossek v. A.C.B. Ltd (1993) 8 NWLR (Pt. 312) 382. The three conditions must, however co-exist. Where they do co-exist if both parties or one of the parties as I have said above, applies for a reference, the trial Judge must refer the case. For all I have said (supra), I cannot bring myself into accepting the submission of Dr. Mosugu that the case stated is improper. Rather, it is my considered view that it is on a firma terra in this court. The learned counsel for the defendants had also contended that the reply brief of the plaintiff violates the rules relating to the filing of reply brief as contained in order 6 rule 5 of the Court of Appeal Rules which are in the following terms:
“The appellant may also if necessary within fourteen days of the service on him of the respondent’s brief but not later than three clear days before the date set down for the hearing of the appeal, file and serve on the respondent, a reply brief which shall deal with all new points arising form the respondent’s brief.”
This is not a matter on appeal to this court. It is a case stated by which this court is being invited to answer some questions relating to the interpretation or application of the provisions of the Constitution. To my mind, the reply here is akin to that filed in the course of settling pleadings for trial in the High Court. The rules of court forbid a plaintiff from filing a reply to a statement of defence where no counter-claim is filed by a defendant to a suit or where no new issues are raised, which from the nature of the defence filed would necessitate the plaintiff leading material evidence in rebuttal see (1) Spasco Vehicle & Plant Hire Co. Ltd v. Alraine (Nig) Ltd (1995) 8 NWLR (Pt. 416) 655 and (2) Agundo v. Gberbo & Anor. (1999) 9 NWLR (Pt. 617) 71. This is to prevent a party to a suit from having a second bite at the cherry. That principle, rooted in fair play, in my view, is applicable here. I have looked at the reply brief filed by the plaintiff, pages 1 to 11 of it are amplification of the plaintiff’s brief, it is only from page 12 up wards that the new issues raised on the defendants brief are addressed. I shall therefore not countenance the contents of pages 1-11 of the plaintiff’s reply brief.
I shall take issues nos 1 and 2 on the plaintiff’s brief together with issues nos 2 on the defendants’ brief. The arguments proffered by the plaintiff and the defendants through their respective counsel and briefs have been set out above. Under count one, the plaintiff was charged with conspiracy to commit a felony to wit: fraudulently granting credit facilities to Dubic Industries Limited without lawful authority and he was said to have committed an offence punishable under section 516 of the Criminal Code Act Cap 77 Laws of the Federation 1990 and section 3(1) (b) (c) and (d) of the Failed Banks (Recovery of Debts) and Financial Malpractices Decree No 18 of 1994. Section 516 of the Criminal Code Act provides:
“Any person who conspires with another to commit any felony, or to do any act in any part of the world which if done in Nigeria would be a felony, and which is an offence under the laws in force in the place where it is proposed to be done, is guilty of the felony, and is liable if no other punishment is provided, to imprisonment for seven years, or if the greater punishment to which a person convicted of the question is liable is less than imprisonment for seven years, then to such less punishment.”
Section 3(1) (b) (c) and (d) of the Failed Banks (Recovery of Debts)
and Financial Malpractices Decree No 18 of 1994 provides:
“The Tribunal shall have power to
Under count 2 he was alleged to be connected with the granting of credit facilities totaling US$2,962,062.89 to Dubic Industries Limited without declaring his personal interest in the said facility to the board of directors as required by section 18(3) of the Banks and other Financial Institutions Decree No 25 of 1991 otherwise called BOFID between 30th June, 1988 and 1st October, 1993 while he was a director of Alpha Merchant Bank Plc and also a Director of Dubic Intdustries Ltd. The salient evidence led in proof of these two counts reveals that the alleged loans which translated into provision of funds for the opening of letters of credits occurred as follows: (1) $500,000 on the 25th of April, 1991, (2) $500,000 on the 27th of March, 1991 (3) $500,000 on the 11th of April, 1991, (4) $500,000 on the 16th of July 1991, (5) $339,985 on the 4th of September, 1991 and (6)$109,014.86 on the 4th, September, 1991. It is instructive to note that the Failed Banks Decree 1994 came into force on the 9th of November, 1994 while BOFID had its commencement date as 20th June, 1991. As I have earlier indicated, the plaintiff was convicted on both counts. On appeal to the Special Appeal Tribunal reduced the sentences to N100,000 or 2 years imprisonment on count 1 and N100,000 or 2 years on count 10 while holding that it had jurisdiction to entertain the appeal. Suffice it to say that the plaintiff had raised the issues of the constitutionality of the conviction before the Special Appeal Tribunal. The plank of the argument of the plaintiff under the two issues I am considering from his brief is as to whether the offence for which he was charged existed in the eye of the law. Learned counsel for the plaintiff had referred to section 33(8) and (12) of the 1979 Constitution to proffer an answer in the negative. Those two constitutional provisions read:
No person shall be held to be guilty of a criminal offence for an act or omission that did not, at the time it took place, constitute such an offence and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.
“Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this sub-section a written law refers to an Act of the National Assembly or a law of a State, any subsidiary legislation or instrument under the provisions of a law.”
The crime said to have been committed, going by the framing of the two counts is “fraudulently granting credit facilities. A felony or a crime must be seen to have been committed within the frame-work of the provisions of the law under which it is charged. I have had a careful study of the Failed Banks Decree No 18 of 1994 and the BOFID nowhere is the offence of “fraudulently granting credit facilities” described. That offence, in my respectful view, is non-existent as far as our criminal law is concerned. It is sacrosanct that no person shall be liable to be tried or punished in any court of this land except under the clear and unambiguous provisions of a written law. I think that is the import of the decision in Aoko v. Fagbemi & Anor. (1961) 1 All N.L.R. 400- though a decision of the High Court of the old Western Region of Nigeria, the law expounded therein remains immutable. In interpreting the combined provisions of section 33(8) and (12) of the 1979 Constitution which I have reproduced above the Supreme Court in Ogbomor v. The State (1985) 1 NWLR (Pt. 2) 233 per the judgment of Karibi-Whyte J.S.C. said at page 233:
“A combined reading of the provisions of section 33(8) and sub-section 12 of the Constitution 1979 suggests that whereas no person can be tried and convicted of an offence which did not exist at the time of its commission or which is not contained in an existing law, there is constitutional or other prohibitions against trial and conviction of a person for an offence, which is known to the law and in is existence at the time of its commission but the relevant statute of which has been incorrectly stated. Thus, it is clear that a mere misdescription of the law under which a charge has been brought does not necessarily render the offence charged one not known to the 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 was laid.”
In the Ogbomor case cited (supra) the only missing element in the information is the words “special provisions” in the title of the statute that creates the offence other than that the offence charged in that case disclosed an offence in a written and existing law. The offence for which the plaintiff was charged, going by the provisions of the laws under which the charge was laid and which provisions I have reproduced above, is very much unknown to any written and existing law. The Special Appeal Tribunal in treating the submission of the learned counsel for the appellant before that Tribunal who is now plaintiff before us said and I quote:
“The expression “fraudulently” is an adverb. It is merely descriptive of the mode of false representation or dishonest artifice or trick employed by the four accused persons to enable the 1st appellant gain the unjust advantage which Lawal 2nd and 3rd appellants dishonestly allowed——:
With due respect that is an over-implication of the matter by the Appeal Tribunal.
That finding of it is not acceptable. The word ‘fraud’ is very weighty in the realm of criminal law. It means “deliberate deception intended to gain an advantage” – definition in Collins English Dictionary. That word is not one which can be regarded as mere “bird of passage” That the framers of Decree No 25 of 1991 (BOFID) did not intend to engage in unguarded use of that word nor did they pretend to encourage the interpreters of the sections of BOFID in the use of that word is borne out of the fact that it was cautiously used in section 19(1) (a) of BOFID which provides:
“No bank shall-
(a) employ or continue the employment of any person who is or at any time has been adjudged bankrupt or has suspended payment to or has compounded with his creditors or who is or has been convicted by a court for an offence in involving fraud or dishonesty or professional misconduct.”
The use of the word “fraud” in afore-mentioned section pre-supposes that the employee must have been subjected to trial in accordance with due process of the law. And he must have, after adhering to principles of fair hearing, been found guilty in accordance with the law. It must be said that under our criminal jurisprudence adversorial system rather than inquisitorial system is what we practice . An accused is presumed to be innocent, no matter the gravity of the offence, until he is proved, in according with the dictates of the law, to be guilty. The way that count was framed undoubtedly suggests that the plaintiff had been found guilty of fraud before he was subjected to trial. Certainly, that must not have been intended as it is an anathema to our criminal practice and procedure.
The respondent had submitted that the plaintiff was given notice of the offence charged and he was not misled. The charge was explicit as to the time, and place and the person against whom the offence was committed. The question is not whether the plaintiff was given notice of the offence charged or whether he was misled. The crucial issue is whether there was the offence; charged to wit “fraudulently granting credit facilities” is contained in an existing law. I have said supra that the offence charged as couched in the charge is unknown to any law. It is for the foregoing that I answer issue no 1 on the plaintiff’s brief in the negative. A conviction for “fraudulently granting credit facilities” as was passed in the court below is a violation of the provisions of section 33(12) of the Constitution as that offence is not defined under the law on which the court was laid. Issue No 2 on the plaintiff’s brief is therefore answered in the affirmative. For similar reason, issue No 2 on the defendants’ brief is answered in the affirmative, issue No.1 on the defendants brief does not flow from the facts of this case as admitted by both sides. I shall now take issues, Nos 3 and 4 on the plaintiff’s brief along with issue No 3 on the defendants’ brief. The crucial point raised by the three issues (3 and 4 on the plaintiff’s brief and 3 on the defendants’ brief) is whether it was proper to convict a person for an offence committed before the commencement of the legislation under which the offence was charged and whether it is proper to convict a person where the facts constituting the offence occurred partly before the commencement of that law and described as “Bullet Conviction” and he posed the question whether it is constitutional.
This poses a question as to the retrospectivity in interpretation of statutes, acts or laws. Both sides have in their briefs of arguments, argued these issues copiously. I have carefully read them. It is common ground between the parties that the loans which consisted of provision of funds for the opening of letters of credits could be divided into two parts i.e. with respect to count one that occurred before 20th June, 1991 when BOFID came into force and those that occurred after BOFID came into force. The deal slips that constitute the first category are exhibits 41 (for $500,000 on 25/4/91), 41A (for $500,000 on 27/3/91) and 41B (for $500,000 on 11th April, 1991). Those loans, if infact they were granted, had been granted before the coming into force of BOFID on the 20th of June, 1991. Granting of loans of the first category which I have itemized above, did not constitute any offence known to law, at least before 20th June, 1991. It is a fundamental principle of law that no statutes or law or even rule shall be construed so as to have a retrospective operation, unless its language is such as plainly to require that construction. I have looked at the wordings of BOFID in its original and amended forms; there is nothing therein to suggest retrospective operation. I go further to say that this basic constitutional principle which I have set out above involves a subordinate constitutional rule that a statute is not to be construed so as to have a greater retrospective effect than its language renders necessary. Again, except in special cases, no new act, law or rule should be construed so as to interfere, as little as possible, with vested rights. And even where the words employed in the couching of the statute act or law admit of another construction, they should not be so construed as to impose disabilities not in existence at the point of coming into force of such statute, act, law or rule. The principle is Nova Constitutio Futuris Formam Imponere Debet, Non Praeterities a new law ought to impose form on what is to follow, but not on the past. It must also be borne in mind that in any democratic setting or in any society which upholds the rule of law as a way of life (and I cannot remember any of the military regimes in this country which, on coming to power, failed to publicly declare that it was going to operate the rule of law) the law must always look forward and not backward. The maxim is Lex Prospicit Non Respicit See also the Supreme Court (the full court) decision in Afolabi & Ors. v. Gov. of Oyo State & Ors (1985) 2 NWLR (Pt. 9) 734 where Eso J.S.C said at pages 768/769 and I quote:
“In my view the law has always been that unless a contrary intention is expressed, there is a presumption that an enactment has no retrospective operation. The principle is “Lex Prospicit non Respicit’ that is the law looks forward and not back————
In Phillips v. Eyre (1870) LR 6QB 1 at page 23 Wills put it in lucid form which he said, and I am in complete agreement – of retrospective legislation, that it is –
“Contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law.”
The lumping of the sets of fact – one existing before the coming into force of the law and the other existing after the commencement of the law – and handing down a blanket conviction and sentence – what the plaintiff styled as bullet conviction is bad in law. The other set of facts which finds expression in deal slips tendered as exhibits 41c, 41d and 41e relating to loans of $500,000, $339,985 and $109,014.86 of 16th July, 1991, 4th September, 1991 and 14th September, 1991 respectively occurred after the coming into force of BOFID. The plaintiff could have properly stood trial with the establishment of those facts and consequently, properly convicted but/for what I have earlier said in this judgment that the count one is founded on a non-existent law. There is no offence known as “fraudulently granting credit facilities” which is known to any law. The success or failure of count 10 depends on the success or failure of count one. And since the facts of non-disclosure of plaintiff’s personal interest in the said facilities to the board of director stem from the facts on which count one rests – granting of loans partly before and partly after 20th June, 1991, count 10 cannot stand; the plaintiff cannot be convicted under it. Issues 3 and 4 on the plaintiff’s brief are consequently answered in the negative. In the same vein, I answer, issue No 3 on the defendant’s brief of argument in the negative.
In the final result and for all I have said above, it is my judgment that the plaintiff’s suit is meritorious. If the matter were on an appeal before us I would have, for the reasons that there is no crime styled as fraudulently granting credit facilities’ and the conviction for that crime being in violation of the provisions of section 33(12) of the 1979 Constitution and the law on which the charge was laid was given retrospective application, allowed the appeal, set aside the conviction and sentences. But, since the matter came to us, by reference (case stated), I return the following answers:
(1) There is no crime known to Nigerian Law as “fraudulently granting credit facilities”.
(2) Conviction on a crime which is unknown to law is unconstitutional and must not be allowed to stand.
(3) It is unconstitutional, indeed it is a violation of all known principles of law to convict the plaintiff of conspiracy to commit a felony in the circumstances of this case where the facts alleged as amounting to felony occurring in 1991 while the Failed Bank Decree under which the felony was charged commenced on the 9th of November, 1994.
(4) It is improper, in law to convict the plaintiff for counts 1 and 10 under the BOFID as a whole without drawing any distinction, when the facts on which the crime was predicated occurred in part before the commencement of the BOFID and partly after the commencement of the BOFID.
GEORGE ADESOLA OGUNTADE, JCA.: I have had the advantage of reading in draft a copy of the lead judgment by my learned brother Aderemi JCA. He has ably and comprehensively dealt with the issues raised in this appeal. I entirely agree with his approach to the issues and the conclusion arrived at. He has also set out the relevant facts. I intend to make a few comments of my own. I do not however intend to repeat the facts.
An aspect of the matter is whether or not the plaintiff could bring his suit before the lower court having regard to the fact that the Special Appeal Tribunal which was the final Court of Appeal over the decisions of the Failed Bank Tribunals had given its judgment in the matter. The argument of the defendants before us is that the suit before the lower court was an indirect way to re-open a matter which the Special Appeal Tribunal had finally settled by its judgment.
I am with respect unable to agree with the submission of Dr. Mosugu for the defendants. It has always been recognized that where a court of law has no jurisdiction to adjudicate on a matter, the proceedings of the court and the ultimate adjudication, no matter its correctness or seeming merit, will still amount to a nullity. See Madukolu v. Nkemdilim (1962) 1 All NLR (Pt. 4) 587. If the Failed Bank Tribunal which tried and convicted the plaintiff had no jurisdiction to do so, the mere fact that the Special Appeal Tribunal later gave judgment on appeal over the matter will not restore to the Failed Bank Tribunal a jurisdiction which it never had. In Anisminic v. Foreign Compensation (1969) 1 All ER 208 at 213 the House of Lords (in England) per Lord Reid observed:
“Statutory provisions which seek to limit the ordinary jurisdiction of the court have a long history. No case has been cited in which any other form of words limiting the jurisdiction of the court has been held to protect a nullity. If the draftsman or parliament had intended to introduce a new kind of ouster clause so as to prevent any enquiry even whether the document relied on was a forgery, I would have expected to find something much more specific than the bald statement that a determination shall not be called in question in any court of law. Undoubtedly such a provision protects every determination which is not a nullity. But I do not think it is necessary or even reasonable to construe the word “determination” as including everything which purports to be a determination but which is in fact no determination at all. And there are no degrees of nullity. There are a number of reasons why the law will hold a purported decision a nullity. I do not see how it could be said that such a provision protects some kinds of nullity but not others; if that were intended it would be easy to say so.”
In the instant case, the appellant had been charged before the Failed Banks Tribunal. On the first count, he was charged with conspiracy to commit a felony to wit: Fraudulently granting credit facilities to Dubic Industries Limited without lawful authority under section 516 of the Criminal Code Act, Cap. 77 Laws of the Federation 1990 and section 3(1) (b) (c) and (d) of the Failed Banks Tribunal (Recovery of Debts) and Financial Malpractices Decree No. 18 of 1994. But as my learned brother has demonstrated in the lead judgment, such offence did not exist in the eye of the law. Sections 33(8) and 33(12) of the 1979 Constitution of Nigeria (which is applicable) provides:
“33(8)No person shall be held guilty of a criminal offence for an act or omission that did not at the time it took place, constitute such an offence and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.
(12) Subject as otherwise provided by this constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this sub-section a written law refers to an Act of the National Assembly or a law of a State, any subsidiary legislation or instrument under the provisions of a law.”
It is trite law that nobody may be convicted of any offence except that created under a written law See Aoko v. Fagbemi & Anor. (1961) 1 All NLR 400. It follows in my view that since the 1st count brought against the plaintiff was unknown to law, the Failed Banks Tribunal had no jurisdiction to have tried it. The 10th count against the plaintiff alleged that the plaintiff committed some offences at a time when BOFID had not come into existence. Acts which had been done before BOFID came into existence were lumped with those said to have been done after BOFID came into existence. The Failed Bank Tribunal recorded a conviction on the two counts thus creating a situation which gave BOFID a retroactive effect. It is my firm view that the Failed Banks Tribunal had no such jurisdiction by force of section 33 of the 1979 Constitution.
The fact that the decree which established the Special Appeals Tribunal protects it’s decision as being final will not shield such decision from scrutiny where the complaint touches the absence of jurisdiciton in the Tribunal. I therefore agree with the answers given in the lead judgment by Aderemi JCA to the questions referred to this court. I would also give the same answers.
ATINUKE OMOBONIKE IGE, JCA: I have had the privilege of a preview of the judgment just delivered by my learned brother Aderemi, J.C.A. I agree with my learned brother’s reasoning and conclusions in answer to the case stated by the lower/court. The plaintiff’s suit is definitely meritorious and I abide by my learned brother decision that there is no offence under our criminal law with the description of “fraudulently granting credit facilities”. Any conviction under such unknown crime is not only unconstitutional but is, also null and void and should be set aside.
SULEIMAN GALADIMA, JCA.: I had the advantage of reading before now the lead judgment just delivered by my learned brother Aderemi, JCA.
I agree entirely with his reasoning and conclusion. The questions raised in the lower court for the consideration of the full court have been carefully considered. There is no crime in Nigerian Criminal Law described as “fraudulently granting credit facilities.”
To convict a person under such non-existing crime will be unconstitutional null and void as it is contrary to the provision of section 35(8) of 1999 Constitution and such conviction should be quashed accordingly.
AMIRU SANUSI, JCA.: I read in advance the judgment of my learned brother Aderemi JCA. I agree with it that the plaintiff’s appeal is meritorious and I accordingly allow it. I abide by the orders made in the lead ruling.
Cases referred to in the judgment
7-Up Bottling Co. Ltd v. Abiola & Sons Ltd (1995) 3 NWLR (Pt. 389) 287.
Afolabi v. Gov. of Oyo State (1985) 2 NWLR (Pt. 9) 734.
African Newspapers of Nig Ltd v. Fed. Republic of Nig (1985) 2 NWLR (Pt. 6)137.
Agundo v. Gberbo (1999) 9 NWLR (Pt. 617) 71.
Anisminic v. Foreign Compensation (1969) 1 All ER 208.
Aoko v. Fagbemi (1961) 1 All N.L.R. 400.
Bamaiyi v. A-G of the Federation (2000) 6 NWRL (Pt. 661) 421.
Effion v. The Director of Prisons, Nigeria Prisons Service (1999) 14 NWLR (Pt. 638) 330.
Gambioba v. Esezi II (1961) 1 All N.L.R. 584 .
Madukolu v. Nkemdilim (1962) 1 All NLR (Pt. 4) 587; (2001) WRN
Ogbomor v. The State (1985) NWLR (Pt. 2) 233.
Phillips v. Eyre (1870) LR 6 QB 1 .
Rossek v. A.C.B. Ltd (1993) 8 NWLR (Pt. 312) 382.
Spasco Vehicle & Plant Hire Co. Ltd v. Alraine (Nig) Ltd (1995) 8 NWLR (Pt. 416) 655.
Ubani v. Director of S.S.S. (1999) 11 NWLR (Pt. 625) 129.
Udosen v. Necon (1997) 5 NWLR (Pt. 506) 570.
Statutes referred to in the judgment
Criminal Act Cap 77 Laws of the Federation 1990 section 516.
Failed Banks (Recovery of Debt) and Financial Malpractices Decree 18 1994, section b (1) (b) (c), (d)
Banks and Other Financial Institution Decree No 25 of 1991 section 18 (9), 18(3), 19(1) 6,
Constitution of the Federal Republic of Nigeria 1999 seciton 33(12), 259(2), 33(8).
Constitution of the Federal Republic of Nigeria 1999 section 295(2)
Criminal Procedure Act, section 158.
BOFID Decree No 62 of May 28 1999: section (4); 3(1) and 5(3)
Rule of Court referred to in the judgment
Court of Appeal Rules, order 6 rule 5, order 2 rules 1, 2 and 3.