I am personally glad to know that the Kogi State Commissioner, who was in the news recently over the allegation of having had unlawful carnal knowledge of one Ms. Elizabeth Oyeniyi sometime in March, 2020 in Kogi State, has now been arraigned on a seven-count charge for offences bordering on, among others, rape, torture and falsification before the Federal Capital Territory High Court under the Violence Against Persons (Prohibition) Act, 2015.
However, discussions as to the propriety of the suspect being charged before an Abuja court, which ensued in a WhatsApp platform I belong to has necessitated this short piece. While it is understandable that legal practitioners might be unsettled by the correctness of charging the suspect in an Abuja high court as against the High Court in Kogi State, which is the known loco criminis, the Nigeria Police Force may still be right to so do.
The General Principle of Criminal Jurisdiction arises from the lofty position of the Nigerian groundnurm as seen in Section 272(1) of the constitution of the Federal Republic of Nigeria 1999 (as amended) (CFRN) which provides as follows; “Subject to the provisions of section 251 and other provisions of this constitution, the high court of a state shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation, or claim is in issue or to hear and determine any criminal proceeding involving or relating to any penalty, forfeiture, punishment, or other liability in respect of an offence committed by any person.” (See also Section 255 and 257 for the FCT High Court).
From the above provisions, it is apparent that the state high court is empowered with unlimited jurisdiction to entertain civil and criminal matters with the mandate to impose penalties where necessary, the FCT High Court inclusive. Jurisdictional competence as referenced in section 272 and 257 of the CFRN above, is further legally categorized as one of two, or both: substantive jurisdiction, and or, territorial jurisdiction. Substantive jurisdiction is the power of the court to hear a case as enabled under a statute while territorial jurisdiction refers to the competence of a court in a locality to entertain a matter. In IBORI V. FRN the Court of Appeal distinguished substantive and territorial jurisdiction of a court to the effect that while substantive jurisdiction is the power of the court to preside over matters expressly provided for by the constitution or any other enabling statute, territorial or geographical jurisdiction is the power exercisable by a court in reference to the locality in which the matter brought before the court arose. In this light, territorial or geographical jurisdiction in a criminal matter is essentially the locality in which the acts constituting the offence were committed.
From the foundation laid above, it is only a court in a jurisdiction within which an offence was committed that has powers to try such criminal matter. In other words, Mr Abdulmumini Danga, having committed the offence in Lokoja, Kogi State of Nigeria, ordinarily ought to be tried in Kogi State. This is the law and permit me to say, the general rule, but to which exceptions lie.
These exceptions include but are not limited to where the elements of an offence cut across several states, where some act forming part of the offence was committed in different states, where the offence was commenced in one state but completed in another, where the suspect after committing a crime in one state entered into another state, and so on. Given the circumstances of Mr. Danga’s case, especially with the fact that the matter was brought before the FCT High Court. I am persuaded to conduct a brief x-ray around the issues with due regards to available facts and the surrounding circumstances.
The Administration of the Criminal Justice Act (ACJA) 2015 is the procedural law that regulates criminal trials in the Federal Capital Territory, Abuja and in all Federal Courts. Thus, when a charge is preferred against any suspect before an FCT High court, no matter how unattractive the charge may seem, the entire gamut rise and fall within the confines of the provisions of the ACJA. It is not sufficient to analyze the charge sheet alone in determining the jurisdiction of the court without reckoning the narrative of the case and proof of evidence, as the Nigeria Police in their usual untidy manner may put up poorly prepared charges and later come to court to amend same.
Sections 93 of the Administration of Criminal Justice Act, 2015, provides among other things, instances that can confer jurisdiction on a court in the FCT under certain circumstances. Specifically, Sub-section (1) of the said section provides that;
an offence shall ordinarily be inquired into and tried by a court within the local limits of whose jurisdiction”:
(a) the offence was wholly or in part committed, or some act forming part of the offence was done;
(b) the consequence of the offence has ensued.
(c) an offence was committed by reference to which the offence is denied; or
(d) a person against whom, or property in respect of which the offence was committed is found, having been transported there by the suspect or by a person knowing of the offence.
A quick review of the wordings of the above section, particularly sub section 1(a), 1(b), 1(d), and sub section 2 suggests that the draftsmen envisaged a situation where the High Courts in Abuja may try criminal matters of which the material offences were committed outside the Federal Capital Territory.
(a). That the offence was wholly or in part committed, or some act forming part of the offence was done in Abuja.
Looking at the intendment of the draftsmen as can be deduced from the wordings of sub section 1(a), it is crystal clear that the law envisages a situation where a criminal act commenced in Kogi State, for instance, may be completed in Abuja or where any act forming part of the offence or particulars of the offence being charged for was done in Abuja, and same may be appropriately investigated and prosecuted in the FCT with the High court of FCT as the court seized of jurisdiction in such cases. In the case of Mr. Danga, there are reliable material facts which show that the offence of intimidation as well as falsification of medical records and audios were committed within the FCT. In addition to this, Mr. Danga had carried out all the subsequent unlawful acts in an attempt to cover up for the rape that was committed in Kogi State. In OSOBA V. THE QUEEN, where the offence for which the accused was charged with cut across Lagos, New Zealand, and Australia, the Supreme Court of Nigeria held that the Lagos State High Court has jurisdiction to adjudicate over the matter.
Therefore, the legal and logical inferences from the circumstance is that some acts which form part of the criminal act as contemplated under section 1(a) were committed in Abuja, and that, clearly, confers jurisdiction on the High of FCT to try the matter. Unfortunately, this vital facts are left out of the charge sheet as preferred by the Police and until the necessary amendments are made, it will be very detrimental to the cause of justice in the matter.
(b)That the consequence of the offence has ensued in Abuja.
Subsection 1(b) above empowers the FCT High court to entertain a criminal matter even though the material elements which constitute the offence were committed outside of the FCT provided the consequences of the offence ensued within the Federal Capital Territory especially where the nature of the offence is one that its consequences may be discovered after some degree of medical evaluation. The nature of rape and sundry offences are such actions with possible consequence likely to surface times after the offence had been committed, and without mincing words, this is what the draftsmen contemplated under subsection 1(b) of the ACJA.
In other words, the law contemplates a trial within the jurisdiction of the court where the result, outcome or consequence of a criminal act is effected, proven or discovered. For example, assuming a lady was raped and assaulted in Kogi State, travelled to Abuja where she started bleeding and had to be examined medically to ascertain the cause of the sudden bleeding. If it was discovered through medical examination that the bleeding was as result of the sexual assault she suffered in Kogi State, the High Court of FCT shall have powers to try the case as if the crime was committed in the FCT since the consequence of the criminal act ensued in Abuja.
Therefore, in the present case of Mr. Danga, where having regard to the present stage of the trial the proof of evidence as well as the material exhibits to be relied on is not yet available to the public, it is unfair to the process of justice to conclude that the FCT High Court is robbed of jurisdiction solely because the act was committed in Kogi State. This is because some acts which form part of the offence was carried out in Abuja, the medical examination was conducted in Abuja and the matter was investigated in Abuja, as such, the High Court of FCT is by law vested with jurisdiction over the case being the court within which jurisdiction the consequence of the criminal act ensued.
(d) That a person against whom, or property in respect of which the offence was committed is found, having been transported to Abuja by the suspect or by a person knowing of the offence.
The interpretation of the unambiguous provision of the law as contained in sub section 1(d) above is that where the victim of a criminal act is found to have been transported to another jurisdiction by the suspect or anyone who is aware of the crime, in this case Abuja, such State where the victim was found shall have jurisdiction over the matter. From the facts available to us, Ms. Elizabeth Oyeniyi, the victim of rape case against Mr. Danga, had been transported to Abuja, while some assert that she was transported to FCT by an interested non-governmental organisation. Many are, however, of the opinion that she was brought in by the Special Investigation Bureau (SIB) department of the Nigeria Police for investigative purpose. Whatever the case may be, the important factor is that she had been transported to Abuja within the interpretation of section 93 of ACJA which consequently confers jurisdiction on the FCT High Court.
Assuming without conceding that all of the above does not confer jurisdiction on the FCT High court, it is further submitted that by the provision of same section 93(2) of the ACJA, which allows a criminal case to be tried outside of the State where the offence was committed where it is shown that it is convenient to do so for security reason, the FCT High court has jurisdiction over the case. We will recall that the victim, Ms. Elizabeth Oyeniyi, was initially kidnapped by unknown thugs alleged to have been acting on the authority of Mr. Danga before being taken to a hotel where the accused eventually brutalised and raped her. On that ground, I submit that Miss. Elizabeth Oyeniyi having been a victim of societal disorder and having been exposed to criminal acts in her locality within Kogi state, the safety of her life is no longer guaranteed and as such it is just and equitable for the case to be tried before the High Court of FCT for security reasons especially having regard to the fact that the investigation of the matter and the subsequence prosecution of the accused was not successful in Kogi State until the accused was invited over to Abuja.
The present case could be likened to the rape case allegation against one Pastor Biodun Fatoyinbo in which investigation has been concluded and the case file has now been forwarded by the Nigeria Police Force to the Kwara State Directorate of Public Prosecution having been instructed to do so by the appropriate authority of the Federal Ministry of Justice having regards to the fact that the crime was alleged to have been committed in Ilorin, Kwara State. There are sufficient arguments to enable the FCT High Court to assume jurisdiction.
My humble submission is that the hallmark of any court system in this contemporary time is justice. This is encapsulated in the equitable maxim of ubi jus, ibi remedium, which simply means that where there is a right, there must be a remedy. Our criminal justice system and, as a matter of generality, the judicial system must be dynamic and flexible enough to admit the modern approaches of prosecution whose ultimate aim is to ensure that justice is not only been done, but should be manifestly seen to have been done. Situations which aim to rob the court of jurisdiction on the alter of mere procedural technicality must be severed entirely from our system as it will not only send back the victim to their homes without remedy, but would also be capable of killing the hope of justice in the general public. It is high time our laws are amended with elastic limits capable of surviving any circumstance to see that criminals who ought to face the rod of justice are not allowed to escape and roam the street with their shoulders high, all on account of technicalities in whatever disguise as that will not represent the court as well as the criminal judicial system as the common man’s last hope. The now notorious cliché or aphorism that “the era of technicality is now in the past and that we are now in the era of substantive justice”, should be lived through within sphere of the justice system.
NB. This is without prejudice to the charge put before the court, and also the presumption of innocence that inures in favour of the defendant.
Pelumi Olajengbesi, Esq. is a Founding Partner at the Pelumi Olajengbesi & Co. Law Corridor, Abuja.