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ONYEKUMNARU V. FRN (2018) LPELR-46040 (CA)
In the Court of Appeal
In the Lagos Judicial Division
Holden at Lagos
ON THURSDAY, 6TH DECEMBER, 2018
Suit No: CA/L/605C/2018
Before Their Lordships
JOSEPH SHAGBAOR IKYEGH, JCA UGOCHUKWU ANTHONY OGAKWU, JCA
GABRIEL OMONIYI KOLAWOLE, JCA
In the Court of Appeal
In the Lagos Judicial Division
Holden at Lagos
ON THURSDAY, 6TH DECEMBER, 2018
Suit No: CA/L/605C/2018
Before Their Lordships
JOSEPH SHAGBAOR IKYEGH, JCA UGOCHUKWU ANTHONY OGAKWU, JCA
GABRIEL OMONIYI KOLAWOLE, JCA
Between
HENRY ONYEKUMNARU – Appellant And
FEDERAL REPUBLIC OF NIGERIA – Respondent
LEAD JUDGMENT DELIVERED BY UGOCHUKWU ANTHONY OGAKWU, J.C.A.
FEDERAL REPUBLIC OF NIGERIA – Respondent
LEAD JUDGMENT DELIVERED BY UGOCHUKWU ANTHONY OGAKWU, J.C.A.
FACTS OF THE CASE
The Appellant, (HENRY ONYEKUMNARU) was arraigned before the High Court of Lagos State on a three-count charge of obtaining by false pretences, issuance of dishonoured cheque and stealing. At the end of the trial, the lower Court, Coram: Ogunsanya, J., convicted the Appellant on all the three counts.
The fact of the case is that, Bunch Energy Limited (Complainant Company) advertised on its website that it desired to buy petroleum products. One Chief Victor Ndee responded that he could supply the petroleum products, but that the Complainant (Bunch Energy Limited) would require a vessel with which to transport the petroleum products. The said Chief Victor Ndee introduced the Appellant (Henry Onyekumnaru) as having a vessel, a dump barge, which could be used to transport the petroleum products. The Complainant negotiated with the Appellant for the cost of the vessel and the agreed sum of N19.4million was paid to the Appellant.
The Appellant claimed that Chief Victor Ndee later came to him and collected the sum of N11milion with which to hire a top barge, which would be used to tug the dump barge transporting the petroleum products. The Appellant had no recourse to the Complainant before releasing the sum of N11milion to Chief Victor Ndee. Furthermore, the Appellant negotiated a charter party agreement for the said transaction with Chief Victor Ndee. The Complainant did not execute any charter party agreement with the Appellant. When the Appellant failed to provide the vessel he was paid for, the Complainant Company demanded the refund of the money it had paid for the use of the dump barge and the Appellant issued a cheque, which on presentation was not honoured. It was found out that the petroleum products were never transported and delivered by any vessel to the Complainant and no charter party agreement was entered into and executed between the Appellant and the Complainant.
It is premised on these set of facts that the Appellant was arraigned tried and convicted. This appeal to the Court of Appeal is an expression of the appellant’s dissatisfaction with his trial and conviction.
ISSUES FOR DETERMINATION
The Court determined the appeal on the following issues:
“1. Whether the trial Court had the jurisdiction to try and convict the Appellant for the offences charged or whether the same comes under the exclusive jurisdiction of the Federal High Court.
2. Whether the delivery of the judgment of the trial court after the mandatory ninety days constitutional period did not occasion a miscarriage of justice to the Appellant herein.
3. Whether the findings in the judgment of the lower court can be supported by the evidence led before it.
4. Whether the lower court afforded the Appellant his constitutionally guaranteed right to presumption of innocence as enshrined in Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria.”
COURT’S RESOLUTION OF ISSUE 1: Whether the trial Court had the jurisdiction to try and convict the Appellant for the offences charged or whether the same comes under the exclusive jurisdiction of the Federal High Court.The Court stated that the contention of the Appellant under this issue is whether the matter was within the exclusive jurisdiction of the Federal High Court, because of which the High Court did not have the jurisdictional competence to entertain the matter. The court then stated that, in determining whether a court has the jurisdiction to entertain a criminal charge brought before it, the first place to explore is the charge sheet containing the offence or offences alleged to have been committed by the accused person. The proof of evidence, or where evidence has been led, the evidence will also assist in determining the jurisdiction of the Court. The Court relied on EGUNJOBI vs. FRN (2013) 3 NWLR (PT 1432) 534, RODA vs. FRN (supra) at 472 and FRN vs. NWOSU (2016) 17 NWLR (PT 1541) 226 at 304.
The court then considered the facts of the case and stated that it is effulgent that no charter party was executed between the Appellant and the Complainant. Equally, the dump barge, which was to be used to ship, was never put to use and remained wherever it was berthed; notwithstanding the payment received by the Appellant for the dump barge to sail.
The court then considered Section 1 (2) of the Admiralty Jurisdiction Act, which provides that the admiralty jurisdiction of the Federal High Court in respect of carriage and delivery of goods extend from the time the goods are placed on board a ship for the purpose of shipping to the time when the goods are delivered to the consignee or whoever is to receive them. The court therefore held that the petroleum products were never placed on the dump barge so the matter was never within the admiralty jurisdiction of the Federal High Court and that it is therefore not an admiralty matter.
Citing the case of UGO-NGADI vs. FRN (2018) LPELR (43903) 1 at 16-17, the court held that the charges have nothing to do with an admiralty claim. They are straightforward charges of obtaining money by false pretences, issuance of dishonoured cheque and stealing. They are undoubtedly within the jurisdiction of the High Court.
The Appellant, (HENRY ONYEKUMNARU) was arraigned before the High Court of Lagos State on a three-count charge of obtaining by false pretences, issuance of dishonoured cheque and stealing. At the end of the trial, the lower Court, Coram: Ogunsanya, J., convicted the Appellant on all the three counts.
The fact of the case is that, Bunch Energy Limited (Complainant Company) advertised on its website that it desired to buy petroleum products. One Chief Victor Ndee responded that he could supply the petroleum products, but that the Complainant (Bunch Energy Limited) would require a vessel with which to transport the petroleum products. The said Chief Victor Ndee introduced the Appellant (Henry Onyekumnaru) as having a vessel, a dump barge, which could be used to transport the petroleum products. The Complainant negotiated with the Appellant for the cost of the vessel and the agreed sum of N19.4million was paid to the Appellant.
The Appellant claimed that Chief Victor Ndee later came to him and collected the sum of N11milion with which to hire a top barge, which would be used to tug the dump barge transporting the petroleum products. The Appellant had no recourse to the Complainant before releasing the sum of N11milion to Chief Victor Ndee. Furthermore, the Appellant negotiated a charter party agreement for the said transaction with Chief Victor Ndee. The Complainant did not execute any charter party agreement with the Appellant. When the Appellant failed to provide the vessel he was paid for, the Complainant Company demanded the refund of the money it had paid for the use of the dump barge and the Appellant issued a cheque, which on presentation was not honoured. It was found out that the petroleum products were never transported and delivered by any vessel to the Complainant and no charter party agreement was entered into and executed between the Appellant and the Complainant.
It is premised on these set of facts that the Appellant was arraigned tried and convicted. This appeal to the Court of Appeal is an expression of the appellant’s dissatisfaction with his trial and conviction.
ISSUES FOR DETERMINATION
The Court determined the appeal on the following issues:
“1. Whether the trial Court had the jurisdiction to try and convict the Appellant for the offences charged or whether the same comes under the exclusive jurisdiction of the Federal High Court.
2. Whether the delivery of the judgment of the trial court after the mandatory ninety days constitutional period did not occasion a miscarriage of justice to the Appellant herein.
3. Whether the findings in the judgment of the lower court can be supported by the evidence led before it.
4. Whether the lower court afforded the Appellant his constitutionally guaranteed right to presumption of innocence as enshrined in Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria.”
COURT’S RESOLUTION OF ISSUE 1: Whether the trial Court had the jurisdiction to try and convict the Appellant for the offences charged or whether the same comes under the exclusive jurisdiction of the Federal High Court.The Court stated that the contention of the Appellant under this issue is whether the matter was within the exclusive jurisdiction of the Federal High Court, because of which the High Court did not have the jurisdictional competence to entertain the matter. The court then stated that, in determining whether a court has the jurisdiction to entertain a criminal charge brought before it, the first place to explore is the charge sheet containing the offence or offences alleged to have been committed by the accused person. The proof of evidence, or where evidence has been led, the evidence will also assist in determining the jurisdiction of the Court. The Court relied on EGUNJOBI vs. FRN (2013) 3 NWLR (PT 1432) 534, RODA vs. FRN (supra) at 472 and FRN vs. NWOSU (2016) 17 NWLR (PT 1541) 226 at 304.
The court then considered the facts of the case and stated that it is effulgent that no charter party was executed between the Appellant and the Complainant. Equally, the dump barge, which was to be used to ship, was never put to use and remained wherever it was berthed; notwithstanding the payment received by the Appellant for the dump barge to sail.
The court then considered Section 1 (2) of the Admiralty Jurisdiction Act, which provides that the admiralty jurisdiction of the Federal High Court in respect of carriage and delivery of goods extend from the time the goods are placed on board a ship for the purpose of shipping to the time when the goods are delivered to the consignee or whoever is to receive them. The court therefore held that the petroleum products were never placed on the dump barge so the matter was never within the admiralty jurisdiction of the Federal High Court and that it is therefore not an admiralty matter.
Citing the case of UGO-NGADI vs. FRN (2018) LPELR (43903) 1 at 16-17, the court held that the charges have nothing to do with an admiralty claim. They are straightforward charges of obtaining money by false pretences, issuance of dishonoured cheque and stealing. They are undoubtedly within the jurisdiction of the High Court.
COURT’S RESOLUTION OF ISSUE 2: Whether the delivery of the judgment of the trial Court after the mandatory ninety days constitutional period did not occasion a miscarriage of justice to the Appellant herein.
After consideration of counsel submission on this issue, the court perused the provisions of Section 294 (1) of the 1999 Constitution, which stipulates as follows:
“Every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
The court then considered the record of appeal and stated,
“From the cold printed records, the parties addressed the lower Court on 23rd October 2017. (See pages 259-260 of the Main Records). Thereafter the lower Court fixed 22nd January 2018 for judgment. Judgment was however not delivered until 26th February 2018. The Records however show that just before it delivered its judgment, the lower Court made the parties re-adopt their final written addresses. (See pages 262-263 of the Main Records). Immediately thereafter, the lower Court delivered its judgment, thus showing that the judgment had already been prepared prior to the re-adoption of final address. The said re-adoption was therefore a mere window dressing designed to circumvent the stipulations of Section 294 (1) of the Constitution. The re-adoption was a facade. While it may sometimes be desirable for a Court to entertain further address on an issue not covered in the original final address, in such a situation time would then run from the date of such further address, however, it does not seem to me permissible for a Court to simply invite counsel to re-adopt their address. Such an exercise does not add any new points to the initial final address and ought to be recognized for the ploy that it is, id est, avoidance of the stipulations of Section 294 (1) of the 1999 Constitution. Any invitation for the parties to re-adopt their final address, without more, after the ninety day period would not in my deferential view obviate the consequences of the non-compliance with Section 294 (1) of the 1999 Constitution as the computation of the ninety day period will still be reckoned from the date of the initial final address.”
It was however held that the judgment of the lower Court, even though delivered outside the constitutional period of ninety days after final address is not to be set aside or treated as a nullity solely on that ground of non-compliance, as no miscarriage of justice was occasioned to the Appellant.
COURT’S RESOLUTION OF ISSUES 3 & 4: “3. Whether the findings in the judgment of the lower court can be supported by the evidence led before it.
4. Whether the lower court afforded the Appellant his constitutionally guaranteed right to presumption of innocence as enshrined in Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria.”
The court considered the submissions of learned counsel on both issues together. Relying on the words of Oputa, JSC (of most blessed memory) in BAKARE vs. THE STATE (1987) LPELR (714) 1 at 12-13, and that of Tobi, JSC in ABEKE vs. THE STATE (2007) LPELR (31) 1 at 17 the court held that:
“It is esoteric that in criminal trials the burden is on the prosecution to prove the offence charged beyond reasonable doubt. However, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and where the evidence adduced is strong as to leave only a remote probability in favour of the accused person, then the case is proved beyond reasonable doubt.”
The court then considered the ingredients of the offences the Appellant was charged with alongside with the facts of the case and how the trial Court evaluated the evidence placed before it and stated thus: “The concatenation of all that has been said thus far is that all the issues for determination have been resolved against the Appellant. This signifies the lack of merit in this appeal. The decision of the lower court embodying the conviction and sentence imposed on the Appellant is hereby affirmed.”
HELD
Overall, the appeal was dismissed.
After consideration of counsel submission on this issue, the court perused the provisions of Section 294 (1) of the 1999 Constitution, which stipulates as follows:
“Every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
The court then considered the record of appeal and stated,
“From the cold printed records, the parties addressed the lower Court on 23rd October 2017. (See pages 259-260 of the Main Records). Thereafter the lower Court fixed 22nd January 2018 for judgment. Judgment was however not delivered until 26th February 2018. The Records however show that just before it delivered its judgment, the lower Court made the parties re-adopt their final written addresses. (See pages 262-263 of the Main Records). Immediately thereafter, the lower Court delivered its judgment, thus showing that the judgment had already been prepared prior to the re-adoption of final address. The said re-adoption was therefore a mere window dressing designed to circumvent the stipulations of Section 294 (1) of the Constitution. The re-adoption was a facade. While it may sometimes be desirable for a Court to entertain further address on an issue not covered in the original final address, in such a situation time would then run from the date of such further address, however, it does not seem to me permissible for a Court to simply invite counsel to re-adopt their address. Such an exercise does not add any new points to the initial final address and ought to be recognized for the ploy that it is, id est, avoidance of the stipulations of Section 294 (1) of the 1999 Constitution. Any invitation for the parties to re-adopt their final address, without more, after the ninety day period would not in my deferential view obviate the consequences of the non-compliance with Section 294 (1) of the 1999 Constitution as the computation of the ninety day period will still be reckoned from the date of the initial final address.”
It was however held that the judgment of the lower Court, even though delivered outside the constitutional period of ninety days after final address is not to be set aside or treated as a nullity solely on that ground of non-compliance, as no miscarriage of justice was occasioned to the Appellant.
COURT’S RESOLUTION OF ISSUES 3 & 4: “3. Whether the findings in the judgment of the lower court can be supported by the evidence led before it.
4. Whether the lower court afforded the Appellant his constitutionally guaranteed right to presumption of innocence as enshrined in Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria.”
The court considered the submissions of learned counsel on both issues together. Relying on the words of Oputa, JSC (of most blessed memory) in BAKARE vs. THE STATE (1987) LPELR (714) 1 at 12-13, and that of Tobi, JSC in ABEKE vs. THE STATE (2007) LPELR (31) 1 at 17 the court held that:
“It is esoteric that in criminal trials the burden is on the prosecution to prove the offence charged beyond reasonable doubt. However, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and where the evidence adduced is strong as to leave only a remote probability in favour of the accused person, then the case is proved beyond reasonable doubt.”
The court then considered the ingredients of the offences the Appellant was charged with alongside with the facts of the case and how the trial Court evaluated the evidence placed before it and stated thus: “The concatenation of all that has been said thus far is that all the issues for determination have been resolved against the Appellant. This signifies the lack of merit in this appeal. The decision of the lower court embodying the conviction and sentence imposed on the Appellant is hereby affirmed.”
HELD
Overall, the appeal was dismissed.
Appearances:
Bamidele Ibironke, Esq. with him, John Ujah, Esq. – For Appellant
Mrs. I.O. Daramola with her, A. M. Ocholi, Esq. – For Respondent
In this article:
Bamidele Ibironke, Esq. with him, John Ujah, Esq. – For Appellant
Mrs. I.O. Daramola with her, A. M. Ocholi, Esq. – For Respondent
In this article: