The Economic and Financial Crimes Commission (EFCC) in its presentation of bank chiefs is that of courts’ jurisdiction. Sadly, the agency is confronted by the issue of jurisdiction. To the bank chiefs, the court cannot try them, a claim which EFCC disputes, writes ADEBISI ONANUGA
Can the Economic and Financial Crimes Commission(EFCC) wriggle out the of issue of court jurisdiction in the various charges it brought against some bank chiefs? This, remains a litmus test yet in the ongoing prosecution of the former bank chief executive officers by the commission
However, it is this issue that a Lagos High Court, sitting in Ikeja will attempt to decide when judges resume from Easter vacation. On May 2, Justice Lateef Akapo-Lawal will decide whether or not he has jurisdiction to hear a criminal suit filed against the former Managing Director of Intercontinental Bank Plc, Dr. Erastus Akingbola who is accused of stealing the bank’s money.
Similar theft charges brought by EFCC against former Managing Directors of defunct Bank PHB and Finbank, Francis Atuche and Okey Nwosu respectively had already been challenged on the grounds of jurisdictional authority.
The first test on issue of jurisdiction was Nwosu’s challenge which proved to be a defining one as the Lagos Division of the Court of Appeal on November 21, 2013 struck out the theft charge against him for lack of jurisdiction on the part of the Lagos High Court. The Court of Appeal held that since the case was associated with capital market issues, it should be handled by the Federal High Court only.
The second test for the commission was in January 2014, when Francis Atuche challenged the jurisdiction of a Lagos High Court to try him on shares related issues. He had cited the Court of Appeal decision as regards the case of Nwosu. It was as a result of the decision of the Appeal Court that made EFCC to appeal to the Supreme Court to over turn the lower court decision on Nwosu. On the strength of that Justice Adeniyi Onigbanjo the presiding judge adjourned hearing of the charges brought against Atuche indefinitely and pending the Supreme Court decision.
In the case of Akingbola, another bank chief currently on trial for related offence, when his case came up for hearing last week before Justice Lateef Lawal-Akapo, the former Managing Director of defunct Intercontinental Bank Plc and his co-defendant, Bayo Dada had filed two separate applications also challenging the jurisdiction of the court to entertain the theft charge preferred against them by EFCC.
Akingbola’s challenge last week is the third test relying on the same grounds as the preceding ones. But EFCC in its counter affidavit argued that the court has the jurisdiction to entertain the case adding that the counts contained in the information do not relate in any way to banking transactions, shares or companies.
The lead counsel, Chief Godwin Obla explained that the counts contained in the information before the court did not in any way challenge Akingbola’s conduct as bank Chief Executive nor any of his functions as a Director. Obla concluded that the application was an abuse of court process and should be thrown out.
But Akingbola countered that it was misleading to describe the application as abuse of court process when its thrust relates to the fundamental and constitutional issue of section 251 of the constitution relating to the exclusive jurisdiction of the Federal High Court. According to his lead counsel Chief Wole Olanipekun the issues relate to shares, stocks, capital market, banking and allied matters, functions of a Chief Executive of a bank which are incorporated under CAMA, among several others.
“It is submitted that only the Federal High Court has jurisdiction to entertain matters that are within the Exclusive Legislative List in Part 1 of the Second Schedule of the 1999 Constitution which by section 4 of the 1999 constitution only the National Assembly can legislate on,” argued Olanipekun.
Citing the applicability of the Court of Appeal decision on Nwosu and the Supreme Court decision on Olabode George vs FRN, Olanipekun contended that the decisions were binding on the court.
The fight for jurisdiction remains a recurring decimal in the dispensation of justice. It played itself out in two instances in suits filed in foreign courts. While the litigant won in foreign courts, they lost in the attempt to enforce the judgements in Nigeria as a judgement of the High Court of Lagos State.
In the first instance, Access bank had sued Capital Oil limited in a London court and came back to Nigeria to want to enforce the judgment, which was an order of injunction against the company before a Federal High court ordered the withdrawal of the case from London and for it to be heard in Nigeria. Only recently a long drawn battle on jurisdiction involving Access Bank Plc had played out before Justice Candide-Johnson of Lagos High Court over the Bank’s registration in Nigeria of the London Judgment and accompanying orders of Mr. Burton of the High Court of Justice, Queens Bench Divisions Commercial London.
The judgment arose from a civil suit filed in 2009 by Access Bank in London against Akingbola in the wake of his removal by Central Bank of Nigeria (CBN) as Chief Executive Officer of defunct Intercontinental Bank.
In the judgment delivered in July, 2012, Akingbola was allegedly found liable of causing substantial loss to the defunct Bank to the tune of N212,294,089,160.15 when the stock market collapsed which it ordered him to pay. The judge said although there was no evidence that he participated personally in the share purchase as the CEO “on balance of probability” he must know about it.
Consequently Access Bank sought to execute the judgment in Nigeria and on July 4, 2013 was granted an exparte order to register and execute the judgment debt, a decision swiftly challenged by Akingbola in September 2013 via a petition.
Ruling on the matter on February 18, Justice Candide-Johnson set aside the controversial London judgment, vacated the exparte order and subsequently struck out Access Bank’s application to register and enforce the judgment debt on the ground that the court lacked jurisdiction to entertain the case in the first place being a matter exclusively for the Federal High Courts. Said the judge: “In the final analysis, I hold that the High Court of Lagos State within the meaning of MADUKOLU V. NKEMDILIM lacks jurisdiction and competence to have entertained, heard and/or determined any aspect of the Registration and Enforcement proceedings in respect of the Foreign Judgment and Accompanying Enrolment Order of Honourable Justice Burton …”
Prior to the ruling Akingbola and Access Bank had on January 16, this year exchanged legal arguments with the bank insisting on the enforcement of the judgment debt.
Counsel to the bank, Mr. Kanyinsola Ajayi (SAN), in his submission argued that the bank had satisfied all conditions for the registration and enforcement of the judgment. He said Akingbola was served with all the processes filed at the English court and that he submitted to the jurisdiction of the court and personally gave evidence along with other witnesses concluding that the court acted with jurisdiction when it gave judgment.
But Akingbola countered in his submission with his counsel, Chief Wole Olanipekun (SAN) arguing that both the English court trial and subsequent judgment were riddled with multiple illegalities.
First, Olanipekun argued that the English court lacked jurisdiction to entertain the case in the first instance. Quoting several decided cases both in United Kingdom and Nigeria including Supreme Court cases, to support his position, he advanced that a foreign court could not assume jurisdiction on a person who is transiently present within the jurisdiction in respect of assets outside the jurisdiction. According to him, it was the freezing order obtained by the bank in the United Kingdom against Akingbola that compelled his presence in London and stranded him there too.
Second, the counsel also argued that Lagos High Court lacked jurisdiction to register the judgment since it could not have entertained the claim leading up to the judgment in the first place. Only Federal High Courts, he further argued, could handle civil causes and matters arising from Companies and Allied Matters Act, which is the subject of the judgment.
Not done, Olanipekun contended that the procedure adopted by the High Court of England in arriving at the decision was in conflict with the Nigerian Constitution and Law of Evidence. For instance the trial was conducted over video, with the judge sitting in London while Akingbola and his witnesses were compelled to give evidence over video in a Lagos Hotel via video link. Also the British trial judge tried to seek the assistance of the Federal High Court to compel the witnesses to appear but the Federal High Court replied that the procedure being adopted was alien to Nigerian laws as witnesses could not be compelled in a civil case.
Not only was Akingbola denied his right to appeal the decision of Mr. Justice Burton of the High Court of England, the court also relied on hearsay testimonies of four claimant witnesses (Mr. Mahmoud Lai Alabi, Mr. Owolabi, Mrs. Folake Akingbade and Mr. Olusola Olayinka) to establish the truth of allegations made against Akingbola without producing them for cross examination he argued. All the Banks witnesses refused to come to court to testify on oath and be cross examined on their witness statements.
Consequently, Olanipekun concluded: “If likelihood of bias does not vitiate a judgment in other climes, it certainly does in Nigeria. If hearsay evidence can ground a judgment in the UK, same cannot ground a judgment in Nigeria; Furthermore, if fraud can be proven in UK on the balance of probabilities, such procedure is expressly forbidden in Nigeria”.
