IN THE SUPREME COURT OF NIGERIA
On Thursday the 9th day of February 1978
THE STATE ...................... APPELLANT
DR. L. E. WILLIAMS & 2 OTHERS ................. RESPONDENT
The three respondents along with three others were charged on an information containing 17 counts of offences under the criminal code of Lagos state. The offences comprise forgery uttering and stealing.
Before the pleas of the accused persons were taken counsel for the 1st accused (1st respondent) applied by way of motion to quash counts 1 - 15 of the charge on the ground that the High Court of Lagos state has no Jurisdiction to try the counts, it being patent on the face of the charge and the particulars there-of that they are causes or matters arising out of or relating to the Exchange Control Act, 1962 and therefore trial only before the Federal Revenues Court as provided in Decree No. 13 og 1973. Similar applications were made on behalf of the 4th accused (2nd respondent) and 6th accused (3rd respondent).
On the conclusion of an argument of counsel to the 1st respondent before the learned trial Judge, it was held that the Lagos state High Court has no Jurisdiction to try counts 1, and 6 - 15, Jurisdiction for the trial of such offences being vested in the Federal Revenue Court with regard to the other courts, however he held the Lagos state High Court has Jurisdiction to try them.
The learned Attorney General appealed to the Supreme Court, and the learned Counsel for the 1st respondent (and later joined by the 2nd and 3rd respondents) against the portion or the ruling in which the High court held that it has Jurisdiction.
The learned Attorney General contended that by virtue of S. 24 Interpretation Act, 1964, the accused persons could be properly prosecuted for the offences charged under the criminal code (of Lagos state) in counts 1, 6 to 15 of the information even though they are offences under the Customs and Excise management Act, and the learned Attorney General referred to the nature of the offences of forgery and contended that classification or character of the document forged only comes into consideration when punishment for special cases is being determined.
As regard the cross appeal the learned Counsel to the respondent argued that since the trial Judge said that he had no Jurisdiction to try some of the counts in the information he has no Jurisdiction to try the other counts in respect of which he ruled that he had Jurisdiction as they relate to the same documents on which he based his lack of Jurisdiction.
(1) The provisions of Decree No. 13 of 1973 does not take away the Jurisdiction of the High Court of a state in matters within the competence of the state under its criminal code and that the Decree could only apply where a charge is laid under a Federal Act or Decree, and as the information was filed before the High court of Lagos containing offences under the criminal code committed within the Lagos state, the High Court of Lagos state has full Jurisdiction to adjudicate, not withstanding the nature of document forged (i.e Custom and Excise document).
(2) The type of document set out in the particulars is irrelevant to the proof of each of the offences and that the character of a document only becomes relevant when a decision has to be taken on the punishment to be inflicted.
Prof. A. B. Kasumu, Attorney General of Lagos state (with him Mr Ejiwumi D. P. P. of Lagos State) for the State.
Mr A. O. Sogbesan (with him Mr C. R. Omagbemi) for the 1st Respondent and holds brief for Mr Gani Fawehinmi for the 4th and 6th Respondents.
Cases referred to:-
1. Daboh v state SC. 402/75 delivered on 27th May, 1977
2. Gallagher v Lynn (1937) AC 863 at 869.
3. Jamal Estates construction v African Continental Bank Ltd. (1973) 11 SC. 77
4. Marino community Hotel v the Board of Referees (1944) 4 D. L. R 638; (1945) 3 D. L. R 225.
5. Queen v Akwule & ors (1963) 1 A.N.L.R 193.
6. Queen v Owoh (1962) 1 A, N.L.R 639.
Statutes referred to:
1. Criminal code of Lagos state, 1973.
2. Customs and Excise Management Act, 1958.
3. Exchange Control Act, 1962.
4. Federal Revenue Court, Decree No. 13, 1973.
5. Interpretation Act, 1964.
6. Law (Miscellaneous Provisions) Act Cap 89 volume 111 of the Laws of the Federation of Nigeria and Lagos, 1958.
Sowemimo, J.S.C.-On Wednesday 7th December, 1977, we allowed the appeal of the Attorney General of Lagos state and dismissed a cross appeal of the above respondents against the ruling of Bada J. and indicated that we would give our considered reasons later. The three respondents along with three others were charged on an information containing 17 counts of offences under the criminal code of Lagos State. The offences comprise forgery, uttering and stealing.
Before the pleas of the accused persons were taken, Counsel for the 1st accused applied by way of motion to quash counts 1 - 15 of the charge on the following grounds:-
"On counts 1, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 on the ground that the High Court of Lagos State has no jurisdiction to try the counts, it being patent on the face of the charge and the particulars thereof that they are causes or matters arising out of or relating to the Exchange Control Act 1962 and therefore triable only before the Federal Revenue Court as provided in Decree No. 13 or 1973.
"On counts 2, 3, 4 and 5 on the ground that the Court has no jurisdiction on the proof of evidence in their support and the particulars attached to the said offences that the matters were justiciable only before the Federal Revenue Court, Decree No. 13 of 1973."
Similar applications were made on behalf of the 4th accused and 6th accused.
After the conclusion of arguments of Counsel before the learned trial Judge, he gave a considered ruling in which he held that the Lagos State High Court has no jurisdiction to try counts 1, and 6-15, jurisdiction for the trial of such offences being vested in the Federal Revenue Court. With regard to the other counts however, he held that the Lagos State High Court has jurisdiction to try them.
Against that ruling, the learned Attorney General appealed to this Court and learned Counsel for the 1st respondent, Mr Sogbesan, cross appealed against the portion of the ruling in which the High Court held that it has jurisdiction to try the 1st accused. The 4th and 6th accused also cross appealed and Mr Sogbesan appeared for them.
The learned Attorney General drew attention to this portion of the ruling of the learned trial Judge which reads:-"Section 24 of the Interpretation Act, 1964 provides as follows:-
'Where an act constitutes an offence under two or more enactments or under an enactment and common law, the alleged offender shall be liable to be prosecuted and on conviction punished under any one of the enactments or, as the case may be, either under the enactment or at common law, but shall not be liable to be punished twice for the same offence.'
By virtue of this provision the accused persons could be properly prosecuted for the offences charged under the Criminal code (of Lagos State) in counts 1, 6 to 15 of the information even though they are offences under the Customs and Excise Management Act 1958.
The learned trial Judge concluded as follows:
"Having held that the documents are connected with the charges in counts 1, 6 to 15 are documents connected with or pertaining to customs and foreign exchange, I hold that this Court has no jurisdiction to try said counts."
The learned Attorney General in his arguments and submissions referred to the nature of the offence of forgery and contended that the classification or character of the document forged only comes into consideration when punishment for special cases is being determined. He referred to the definition of the offence of forgery in Section 465 of the Criminal Code of Lagos State in Volume II, Laws of the Lagos State of Nigeria Cap 31 1973. He also drew attention to the definition of document which reads:-
"'Document' includes a register or register book, a part of either, and any book and any paper, parchment, or other material whatsoever, used for writing or printing, which is marked with any letters or marks denoting words, and with any other signs capable of conveying a definite meaning to persons conversant with them; but does not include trade marks on articles of commerce:"
A further consideration of Section 467, subsection (1) deals with punishment in special cases and it is in this particular subsection that different documents are specified including such as come within the provisions of the Exchange Control Act 1962 and the Customs and Excise management Act 1958. It is therefore clear that the character of a document only becomes relevant when a decision has to be taken on the punishment to be inflicted. Reference was made to the case of the QUEEN Vs. AKWULE AND OTHERS (1963) 1 ANLR page 193. At page 199 this Court after citing a portion of the judgment of Lord ATKIN in GALLAGHER Vs. LYNN (1937) AC, 863 at page 869 stated thus:-
"Adopting those views for our guidance, it is clear that the Legislature of Northern Nigeria has power "to make laws for the peace, order and good government of the Region": section 4 of the Constitution of Northern Nigeria. There is no suggestion that in including bankers in section 315 of its Penal Code, that legislature was using its power to legislate on an offence such as criminal breach of trust as a cloak for encroaching on the field of banks and banking. The offence is created and defined in section 311; and any person guilty of it may be punished under section 312: the true nature of sections 313, 314 and 315 is that certain categories of persons (including bankers in section 315) should be liable to heavier punishment. An example of this mode of penal legislation is found in the Criminal code of the Federation and of the other regions. Section 390 of that Code provides a general punishment for stealing and goes on to provide heavier punishments for graver cases of the offence. That is arranged in subsections. In the Penal code of Northern Nigeria, sections 312 to 315 could have been made or arranged a subsection in a single section dealing with punishments.
"We are of the opinion that section 315 of the Penal Code is constitutionally valid in so far as it includes bankers in the category of persons liable to heavier punishment for criminal breach of trust. We are of the view that this is not legislation in respect of banks and banking but merely an incidental provision in penal legislation enacted for the enacted for the peace and good government of Northern Nigeria. We therefore reject the submission of Counsel that this legislation is invalid in respect of bankers and that it is null and void."
It does seem to us therefore, that the learned Attorney general's argument and submission on this point are sound. We are in no doubt that if the learned trial Judge had considered the definition of the offence of forgery along with the definition of document, and the heavier punishments for certain types of documents provided in section 467, subsection (1) referred to above, he would have come to the conclusion that the type of document set out in the particulars is irrelevant to the proof of each of the offences.
Another submission made was on the assumption that if the learned trial Judge is held to be right on his consideration that the type of document determines the offence, it must be restricted to offences under Federal Laws. We were referred to the state of the law on jurisdiction before decree No. 13 of 1973, titled Federal Revenue Court Decree" came into being. As at that time, and except in Lagos which was then Federal territory, power to prefer charges for offences under Federal laws came under the provisions of Section 44 of the Law (Miscellaneous Provisions) Act Cap. 89 in Volume III of the Laws of the Federation of Nigeria and Lagos 1958, which reads:-
"(1) Where jurisdiction is conferred by any Law upon a High Court or a magistrate's court established for a Region with respect to
(a) the summary trial and conviction; or
(b) the examination and commitment for trial on indictment; or
(c) the trial and conviction on indictment,
of offenders or persons charged with offences against the laws of the Region and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, such court shall except in so far as other provision is made by law in force in the Region, have the like jurisdiction with respect to offenders or persons charged with offence against a federal Law committed in the Region or who may lawfully be tried for offences committed elsewhere.
(2) In this section "federal law" means any law enacted by the Federal legislature, or having effect as if so enacted, which relates to a matter within the exclusive legislative competence of the Federal legislature.
(3) This section shall not apply to Lagos."
By this law, each Region (now State) was delegated the power to try offences under Federal Laws. In 1960, by virtue of the Penal Code (Northern Region) Federal Provisions Act No. 25 of 1960, the provisions which we have just referred to were repealed and replaced by other provisions enabling the High Court of the Northern Region to deal with Federal offences as forming part of the Penal Code of that Region. We were also referred to the Criminal Procedure (Northern Region) Act No. 20 of 1960, which set out in the appendix, offences under Federal Laws. With the creation of more States (including Lagos State) and the continued application of the existing provisions of the Criminal Code to offences committed within each State, the position is that, until the creation of the Federal Revenue Court, the High Court of Lagos State had jurisdiction to try the offences provided for under Federal Laws, for instance offences under Section 7(2) of the Federal Revenue Court Decree 1973. It then comes to this, that if the issue of jurisdiction is raised in regard to offences in an information in the High Court of Lagos State, it must be shown that such offences are against Federal laws in respect of which jurisdiction previously delegated to the High Court has now been taken away with the creation of the Federal Revenue Court:- see Section 8 of the Decree No. 13 of 1973.
Mr Sogbesan, in reply, was of the view that although the trial Judge in his ruling held that certain offences could be validly tried in the High Court of Lagos State as well as the Federal Revenue Court, argued that by virtue of the description of the documents given in the particulars of offences, the jurisdiction of the High Court of Lagos State is ousted. He supported that aspect of the ruling in which the learned trial Judge assumed the position of searching for possible offences analogous to those charged before him in the Customs and Excise Management Act 1958, and the Exchange Control Act of 1962, and on completion of that exercise, came to the conclusion that certain possible sections of the Acts referred to, could have covered the charges laid in the information before him. With due respect to the learned trial Judge, we thought in dealing with the application for the quashing of the information, he should deal with the offences ex-facie the information before him and not embark, as he did, on a research into possible offences under the Federal Laws which were not before him.
If after a consideration of Section 24 of the Interpretation Act, the learned judge held that the offences charged under the Criminal Code as contained in the information were validly charged, Section 7(2)(3) and 8 of the Federal Revenue Court Decree No. 13 of 1973 should not have arisen for consideration. Strictly, Section 7(2) deals with criminal causes and matters arising out of or connected with any of the matters in respect of which jurisdiction is conferred by subsection 1 of the Section which are matters relating to Federal Laws on specific subjects. In considering the provisions of subsection (2), the learned trial Judge did not perceive that their scope was limited by subsection (3), which makes the jurisdiction conferred by Section 7(2) subject to Section 63(3) and includes in it "original jurisdiction in respect of offences under the provisions of the Criminal Code being offences in relation to which proceedings may be initiated at the instance of the Attorney General of the Federation." Neither Section 104 of the Constitution of the Federation nor Section 341 of the Criminal Procedure Law of Lagos State confers original jurisdiction on the Attorney General of the Federation to initiate proceedings by way of information in the Lagos State High Court with respect to offences under the Criminal Code of that State. A consideration of all the Laws referred to, show that the Federal Revenue Court has jurisdiction in matters contained in the Exclusive Legislative List including taxation of companies, customs and excise duties, banking, foreign exchange, currency and fiscal measures of the Government of the Federation.
It is quite clear to us on a careful consideration of the provisions of Decree No. 13 of 1973 that the Decree does not take away the jurisdiction of the High Court of a State in matters within the competence of the State under its Criminal Code. This is made quiet clear by reference to Section 63 subsection 4 of Decree No. 13 of 1973 which provides:-
"(4) For the avoidance of doubt the following enactments:
(a) The Regional Courts (Federal Jurisdiction Act),
(b) The Criminal Procedure (Northern Region Act 1960),
(c) The Penal Code Northern Region (Federal Provisions Act 1960),
(d) Section 44 of the Law (Miscellaneous Provisions Act),
(e) The Admiralty Jurisdiction Act 1962; and
(f) Such other Federal enactments as the Head of the Federal Military Government by order specify;
shall be construed with such modifications as might be necessary to bring them into conformity with the provisions of this Decree."
All the enactments cited are all Federal enactments which had previously conferred jurisdiction on State High Courts to try Federal matter. With this as a background, more light is thrown on the interpretation of Section 7(1), (2) and (3). We do not agree with Mr Sogbesan, learned Counsel for the appellants, that these Sections create new or fresh criminal causes or matters. As the learned Attorney General submitted, all that had been done was to transfer jurisdiction in respect of such criminal matters falling within the competence of the Federal Military Government to the Federal Revenue Court. If, therefore, these Sections are interpreted in the light of what we have said, the Federal Revenue Court Decree No. 13 of 1973 should only apply where a charge is laid under a Federal Act or Decree and, when this has been done, it will be necessary to decide whether jurisdiction still exists in the State High Court or has been exclusively vested in the Federal Revenue Court.
For instance, if a person commits an offence of stealing Customs papers in Lagos State, he would be charged under the Criminal Code of Lagos State for the offence of stealing and when it comes to the question of the punishment to be given, subsection (1) of Section 390 of the Criminal Code may then come for consideration. If the information as charged in this matter had been brought under the Customs and Excise Management Act 1958 or the Exchange Control Act of 1962, it might be open to the learned trial Judge to decide whether the State High Court has jurisdiction to try these matters not withstanding that the offences were committed in Lagos State.
Mr Sogbesan replied to the submissions and arguments of the learned Attorney General and also put forward his own arguments and submissions in respect of the cross appeal filed by him. His main submission was that since it had been so indicated in the particulars of charge, as contained in the information, as well as in the proof of evidence supplied, it was quite clear that the offences relate to or are connected with matters set out in Section 7 of the Federal Revenue Court Decree. In short, it is his contention that the documents are so relevant to the proof of the charges contained in the information, that the High Court of Lagos State could not assume jurisdiction because all the offences, if properly laid, would come under Federal Laws. We have given careful consideration to the arguments and submissions of Mr Sogbesan and to the several Sections of both the Exchange Control Act, 1962 and Customs and Excise Management Act 1958 which provides similar or analogous offences to those charged in the information, but we are unable to agree with him that in determing jurisdiction in regard to the offences charged in the information, the character of the documents is relevant, except for the purpose of determining punishment. Thus in the determination of punishment, jurisdiction is not involved vis-a-vis the High Court and the Federal Revenue Court.
Mr Sogbesan conceded that the Federal Revenue Court Decree creates no offences, but contended that it deals with the forum or venue where certain offences can be tried and that in this particular case, the offences as contained in the information can only be tried in the Federal Revenue Court. With respect, we see no force in this argument and we hold that Sections 7(2), (3) and 8 of Decree No. 13 of 1973 create no special exclusive jurisdiction for the trial of criminal offences in the Federal Revenue Court.
We have also considered Mr Sogbesan's argument as to the meaning to be attached to the words "touching and concerning" and his reference to the case of JAMAL ESTATES CONSTRUCTION Vs. AFRICAN CONTINENTAL BANK 1973 11 SC page 77. Our attention was also drawn to the case of MARINO COMMUNITY HOTEL Vs. THE BOARD OF REFEREES (1944) 4 DLR 638 especially the judgment of MACFARLENE J. in the court of first instance and the judgment of the Supreme Court in the same matter in (1945) 3 DLR page 225. Mr Sogbesan has also referred us to Decree No. 1 of 1966 as well as Decree No. 32 of 1975 and submitted that there are no legislative lists as in the Constitution of 1963:-
See Section 1 subsection (1), (2) and (3) of Decree No. 32 of 1975. Mr Sogbesan has submitted that the Attorney General of the Federation could institute any action both in relation to Federal Offences and State offences in any court in Nigeria because Section 104 subsection (2) of the Constitution of 1963 has not been amended. We wish to refer to the consideration given to this matter in DABOH Vs. THE STATE SC. 402/75, delivered in this Court on the 27th of May 1977 especially at page 28 as well as the case of the QUEEN Vs. OWOH (1962) 1 ANLR 639. We are in no doubt that if Section 104 of the Constitution 1963 is read along with Section 341 of the Criminal Procedure Law of Lagos State, it will be seen that it is only the Attorney General of Lagos State who is competent to institute criminal proceeding under the Criminal Code of the State.
We do not think that there is much strength in the argument and submissions of learned Counsel for the appellants that since the trial Judge said that he had no jurisdiction to try some of the counts in the information, he had no jurisdiction to try the other counts in respect of which he ruled that he had jurisdiction, as they relate to the same document on which he based his lack of jurisdiction. We do not wish, as the learned trial Judge had done in this case, to examine and speculate on what offences in certain Federal Laws are similar or analogous to those charged in the information. We are only concerned with the information as filed before the learned trial Judge, containing offences under the Criminal Code committed within the Lagos State and upon which, in our view, the High Court of Lagos State has full jurisdiction to adjudicate.
For the above reasons, we allowed the appeal of the State against the ruling of BADA J. and dismissed the appeals by the respondents/appellants in the cross appeal. We indicated in our judgment delivered on Wednesday 7th December, 1977 that the case should be remitted to the Lagos State High Court and dealt with expeditiously, and we ordered accordingly.