FRANK AMAH V. FEDERAL REPUBLIC OF NIGERIA (2019)

Background

Frank Amah appealed to the Supreme Court against the judgment of the Court of Appeal, Lagos Division, which had partially allowed the Federal Republic of Nigeria’s appeal from the decision of the High Court of Lagos State. Amah and Chyfrank Nigeria Plc. had been charged before the High Court with conspiracy to obtain money by false pretences, obtaining money by false pretences, and stealing by fraudulent conversion. The charges arose from the alleged sale of House No. 7, Bell Avenue, Ikoyi, Lagos, which was represented to a prospective purchaser as having been allocated to Alhaji Abubakar Mallam, a serving Deputy Comptroller of Customs.

The prosecution alleged that Amah presented allocation documents and represented that he was authorised to sell the property on behalf of Mallam. Donatus Duru, the prospective purchaser, paid substantial sums through Chyfrank Nigeria Plc. The transaction was later exposed when the Federal Government cancelled the sale of the Ikoyi houses and published the names of affected allottees. Mallam discovered that his name had been used without authority and petitioned relevant agencies. The Economic and Financial Crimes Commission (EFCC) investigated the transaction and alleged that, instead of transmitting the money for the purchase of the Bell Avenue property, Amah diverted portions of it to acquire another property at 22 Thompson Avenue, Ikoyi, and for other personal purposes.

At the conclusion of the prosecution’s evidence, the accused persons made a no-case submission. The trial court upheld the submission and discharged and acquitted them on all six counts. The Court of Appeal affirmed the acquittals on counts 1 to 4 but set aside the decision on counts 5 and 6, relating to stealing by fraudulent conversion, and ordered a retrial. Amah then appealed to the Supreme Court.

Issues

1. Whether the EFCC could prosecute Amah for offences under the Criminal Code Law of Lagos State without tendering a fiat issued by the Attorney-General of Lagos State.
2. Whether Amah’s failure to object at the commencement of proceedings prevented him from later challenging the EFCC’s authority and the jurisdiction of the trial court.
3. Whether the prosecution had established a prima facie case of stealing by fraudulent conversion sufficient to require Amah to enter a defence.

Ratio Decidendi

The Supreme Court dismissed the appeal and affirmed the order for retrial on counts 5 and 6. The Court held that the constitutional prosecutorial powers of the Attorney-General of a State under section 211 of the 1999 Constitution are not exclusive in the sense that no other authority may institute or undertake criminal proceedings. The provisions permitting the Attorney-General to take over and continue proceedings instituted by another authority demonstrate that criminal prosecutions may validly be commenced by other authorised bodies.

Applying Amadi v. FRN, Nyame v. FRN, Saraki v. FRN and Shema v. FRN, the Court held that the EFCC has authority to prosecute economic and financial crimes, including offences charged under the Criminal Code where the facts disclose a financial crime. The alleged delegation by the Attorney-General of Lagos State to the EFCC was presumed regular under section 168(1) of the Evidence Act, 2011. The appellant did not rebut that presumption with evidence. The fiat did not have to be physically tendered before the trial court as a condition precedent to its jurisdiction.

The Court further distinguished substantive jurisdiction from procedural authority or locus standi. The jurisdiction of the Lagos State High Court to hear offences created by Lagos State law was derived from the Constitution and applicable statutes; it was not dependent upon the production of a prosecutorial fiat. Any complaint concerning the manner in which the EFCC’s authority was exercised was procedural and could be waived if not raised promptly.

Court Findings

The Court explained that a competent court must be properly constituted, have jurisdiction over the subject matter, and receive the case through due process and fulfilment of any true condition precedent. Although an objection to substantive jurisdiction may be raised at any stage, a procedural objection must be taken timeously. Section 167 of the Criminal Procedure Law of Lagos State required an objection to a formal defect in a charge to be raised immediately after the charge was read. Since Amah did not object at arraignment, he was deemed to have waived or abandoned the procedural complaint.

On the no-case submission, the Court reiterated that its purpose is to determine whether there is evidence upon which a reasonable tribunal could convict if the evidence were believed. The court must not decide credibility or evaluate the evidence finally at that stage. A no-case submission succeeds where the prosecution has failed to prove an essential element of the offence, or where its evidence has been so discredited or is so manifestly unreliable that no reasonable tribunal could safely convict.

The evidence disclosed that Duru’s money was paid for a specific purpose: the purchase of the Bell Avenue property on behalf of the represented allottee. Amah, alleged to be the alter ego and signatory of Chyfrank Nigeria Plc.’s account, allegedly diverted N86,900,000 and N7,900,000 to purchase another property for himself. Mallam denied knowledge of the transaction and Amah’s statement allegedly indicated that he did not even know Mallam. These facts constituted prima facie evidence of fraudulent conversion and an intention to use the money for a purpose other than that authorised.

The Court stated that the ingredients of stealing include ownership of the property, the capacity of the property to be stolen, and fraudulent taking or conversion. In a conversion charge, it is immaterial whether the property was initially in the accused’s possession, or whether the accused held a power of attorney or some authority to dispose of it. The arguments concerning ultimate ownership, consent, deception and whether the purchaser had received value were matters for determination after a full trial, not at the no-case stage.

Conclusion

The Supreme Court unanimously found no merit in the appeal. It dismissed the appeal and affirmed the Court of Appeal’s order remitting the case to the Chief Judge of Lagos State for reassignment to another judge and retrial of Amah on counts 5 and 6.

Significance

The decision confirms the broad prosecutorial role of the EFCC in financial-crime cases prosecuted in State High Courts. It also clarifies that the existence or production of a fiat is not automatically a condition affecting the court’s substantive jurisdiction. Finally, the judgment reinforces the limited scope of a no-case submission: an accused person must be called upon to defend where the prosecution’s evidence discloses a legally sufficient, though rebuttable, prima facie case.