A special panel of the Court of Appeal, Lagos division on Friday set aside the decision, 15 months ago, of a Lagos High Court sitting in Ikeja to discharge former Managing Director of defunct Bank PHB, Francis Atuche, of N25.7 billion theft charge preferred against him by the Economic and Financial Crimes Commission (EFCC).
Justice Gana Mshelia (Mrs) set aside the judgement and ordered the Chief Judge of Lagos State to reassign the case to another judge (aside from Justice Lawal-Akapo and Justice Latifat Okunnu) for retrial.
Also discharged of the theft charge were his wife, Elizabeth and a former Chief Financial Officer of the bank, Ugo Anyanwu.
The trial judge, Justice Lateef Lawal-Akapo had in his judgement delivered on June 22, 2015 upheld the submissions of the defence team including Chief Anthony Idigbe (SAN) and Sylvia Ogwemoh (SAN) that the court lacked jurisdiction to entertain the suit and that the prosecution’s case lacked merit.
Justice Msheila in her lead judgement however held that the trial judge erred in law by holding that it was bound on the principle of stare decisis by the decision in Okey Nwosu Vs Federal Republic of Nigeria and Akingbola Vs Federal Republic of Nigeria.
The appellate court further held that the lower court erred when it struck out counts 1 to 24 and 26 in the amended information against the third defendant.
Justice Lawal-Akapo had held “I find no merit in the prosecution’s application, it is hereby dismissed. The defendants application dated November 27, 2013 succeeds and I hereby make the following orders:
“The criminal charge in this suit is hereby struck out and the accused persons namely; Francis Atuche, Elizabeth Atuche and Ugo Anyawu are discharged. The complainant’s notice of plenary objection dated December 3, 2013 is hereby dismissed”, Justice Lawal-Akapo had declared.
But the EFCC in its appeal filed by its counsel, Kemi Pinheiro (SAN), sought an order of the Court of Appeal setting aside the order of Justice Lawal-Akapo striking out the counts contained in the amended information dated June 1, 2011.
Other reliefs sought by the EFCC include an order allowing its appeal and an order directing a continuation of trial and defence before Justice Lateefa Okunnu of the High Court of Lagos State sitting in Ikeja.
The EFCC which based its appeal on five grounds told the court that the learned trial judge erred in law by proceeding to strike out the entirety of the amended information when by the unambiguous and plain provisions of Section 252(3) of the Constitution, no exclusive criminal jurisdiction is conferred on the Federal High Court (at least to the exclusion of the Lagos High Court) on the matters provided for under Section 251(1).
The commission contended that it was wrong for the court to strike out counts 1 to 24 and 26 in the amended information against the third defendant when the order of the Court of Appeal against which he claimed the lower court assumed jurisdiction over the charge was in respect of the appeals initiated by the first and second appellants only stressing that the third defendant was not a party to it.
He said neither the third defendant nor his counsel made any application before the court seeking to have counts 1 to 24 and 26 of the amended information struck out.
He said the court, by so doing, has become charitable by granting relief and order not sought for by the third defendant.
The EFCC submitted that the defendants pleaded separately each of the counts contained in the amended information to the main suit. It explained that counts one to 10 dealt with the alleged stealing of money belonging to the bank while count 11 to 27 dealt with the allegation of conversion of the monies to personal use.
It said the court ignored the provisions of Section 152 and 153 of the Administration of Criminal Justice Law 2011 by striking out all the counts against the defendants.
The EFCC contended that the trial judge erred in law by holding that it was bound on the principle of stare decisis by the decision in Okey Nwosu Vs Federal Republic of Nigeria and Akingbola Vs Federal Republic of Nigeria. It said the decision of the Court of Appeal in Ehindero Vs Federal Republic of Nigeria and Sebastian Adigwe Vs Federal Republic of Nigeria affirmed the non-exclusivity of the criminal jurisdiction of the Federal High Court.
The EFCC contended that where there are two or more conflicting decisions of a higher court or the Court of Appeal, the law stipulated that the lower court is at liberty and free to choose which of the decisions to follow and cited the cases of Eze Vs Attorney General Rivers State, Ikweki Vs Ebele and Mohammed Vs MECO Limited to support his claim.
The commission said the lower court was wrong to hold that it was bound by the decisions of the upper court in the cases of Okey Nwosu and Akingbola and to declare that the cases were similar and applicable to the instant case.
