This article by Dr Olumide Obayemi looks at Bobrisky’s case, identifying substantive and procedural legal appellate issues, arguing that a pre-arraignment Objection for Orders Quashing and/or Striking the Charges, Counts and Information would have disposed of all charges, and identifies five appellate grounds in favour of Bobrisky
Background
In Federal Republic of Nigeria v Idris Olanrewaju Okuneye, Suit No. FHC/L/244c/2024 (Bobrisky Case), Bobriskywas on April 12, 2024, sentenced by Justice Abimbola Awogboro, of the Federal High Court (FHC), to 6 months imprisonment without an option of fine, for abusing Nigerian currency.
On February 13, 2023, in FRN v Omoseyin, before Justice Chukwujekwu Aneke, Omoseyin was alleged to have, tampered with N100,000.00 issued by CBN by spraying and stepping on them. Having initially pleaded “not guilty,” she was granted bail on February 15, 2023. Subsequently, on February 1, 2024, Omoseyin changed her plea to ‘guilty,’ and was thereafter convicted and sentenced to 6 months imprisonment with an option of N300,000.00 fine, payable into the Federal Consolidated Revenue account.
Bobrisky’s Case
Bobrisky was originally charged with 6 counts. 2 counts of money laundering were stricken. A sample of the surviving charges against Bobrisky states:
i. “That you, Okuneye Idris Olanrewaju, on the 24th day of March, 2024, at Imax Circle Mall, Jakande, Lekki, within the jurisdiction of this Honourable Court, whilst dancing during a social event tampered with| the total sum of N400,000.00 (Four Hundred Thousand Naira) notes issued by the Central Bank of Nigeria by spraying the same and you thereby committed an offence contrary to and punishable under Section 21(1) of the Central Bank Act, 2007”.
Initially, on April 1st, 2024, Bobrisky pleaded ‘not guilty,’ but in a bizarre manner, on April 5, 2024, he changed his plea to ‘guilty.’ Awogboro J. sentenced Bobrisky without an option of fine, to commence on 24 March, 2024 (arrest day) to be served at Ikoyi Correctional Facility.
Constitutional Validity and Legal Challenges on Appel From Bobrisky Trial
The Bonrisky trial is manifestly wrong.
a. An Argument for a Complaint Based on Ineffective Assistance of Counsel
A review of the Omoseyin charges when compared with Bobrisky charges, would show that there are additional words in Omoseyin charges—“…and you thereby committed an offence contrary to and punishable under Section 21(1) of the Central Bank Act, 2007.” These surplus words show that Section 21(1) CBN Act provides the punishment rather than being the subsection creating the offence itself (21(3)). The Bobrisky charges are ambiguous.
Further, there was no rush in Omoseyin. Omoseyin was arraigned on February 13, 2023, when she pleaded ‘not guilty.’ Wisely, Omoseyin applied for and was granted bail on February 15, 2023. It appears that over the next 12 months, Omoseyin engaged in preparation and negotiation for a very beneficial plea bargain. She was given an option of payment of fine on February 1, 2024.
Contrarily, Bobrisky case lasted less than 30 days, with a very deleterious effect. In addition, no challenge, substantive or procedural, was made against the charges. Quite interesting that Omoseyin lasted for a whole year. What is the haste in pleading guilty to a bailable offence in a hurry, without a proper plea bargain at the minimum? Under Rule 16 of the Rules of Professional Conduct (2007), ‘a Lawyer shall not handle a legal matter, which he is not competent to handle without associating a Lawyer with him who is competent, except the client objects or neglects a matter entrusted on him or handle a legal matter without adequate preparation’. Similarly, a legal practitioner owes his client a general duty of care and diligence. Damages arising from a Lawyer’s negligent conduct, will make him liable. Thus, Section 9(1) of the Legal Practitioners Act 1962, 1962, now Cap L11 LFN 2004, provides that a Lawyer shall not be immune from negligence while acting in his capacity as a legal practitioner.
There is a denial of constitutional right to to counsel and fair trial under Section 36(6) of 1999 Constitution.
b. The charges, counts, and proof are incompetent for misjoiner, vagueness and ambiguity, and should have been quashed and/or stricken
There are two classes of defects to charges (a) Formal defects under Section 221 of ACJA; and (b) Fundamental defects that nullify the charges under Section 396(2) of ACJA. Formal defects do not nullify trials, and must be raised prior to making a plea. Obakpolor v The State (1991) 1 NWLR (Pt 165) 113. Where a defect goes to the validity/foundation of the charges and infringes against the constitutional right to proceed to trial (based on defective charges), this is a fundamental defect, which will nullify the trial having deprived the court of its jurisdiction to hear and determine upon such an irredeemably and fundamentally defective charge. Thus, Section 396(2) of ACJA states:
“After the plea has been taken, the defendant may raise any objection to the validity of the charge or the information at any time before judgement, provided that such objection shall only be considered along with the substantive issues and a ruling thereon made at the time of delivery of judgement.”
This objection may be raised at any time of the trial – perhaps, even on appeal. Here, there was none at all, as required by Sections 193-215 of ACJA. A valid arraignment is a necessary pre-requisite of valid criminal trial. This is also a constitutional requirement under Section 36(6) of 1999 Constitution. It is a statutory and constitutional requirement, which if not substantially observed, would nullify entire trial. In Ibrahim v The State (2014) 3 NWLR (Pt 1394) 305 per Aka’ahs JSC the Supreme Court held:
The arraignment of an accused touches on the jurisdiction of the court, and any improper arraignment of the accused is a breach of a requirement in a criminal proceedings which is capable rendering the totality of proceedings nullity or void.
Generally, a charge may contain more than one offence if the offences charged are founded on the same facts, or form part of a series of offences of the same or similar character. But, where more than one offence is contained in the same charge, it shall be separately stated. Bobrisky’s charges show fundamental defects—allegations of ‘tampering with’ and ‘spraying’ combined in every separate charge, leading to the questions—whether a defendant may be engaged in ‘tampering with’ and ‘spraying of’ currency at the same time? Or, indeed, whether the statutes defined ‘tampering with’ and ‘spraying’ as mutually inclusive acts? A word/phrase is given its natural/ordinary meaning. Section 21(1) of CBN Act 2007 which expressly mentions ‘any person who tampers with….” is separate and disjunctive from Section 21(3) which talks about ‘spraying of, dancing or matching (sic) on…shall constitute an abuse and defacing of the Naira…’. Clearly, Section 21(3) does not state that: ‘spraying of, dancing or matching (sic) on…shall constitute tampering with the Naira…’ No, it does not! If this were the lawmakers’ intention, it would have been expressly stated that spraying amounts to tampering. But, such was never stated.
Further, the phrase ‘tampering with’ is usually used in the context of illegal diversion of electricity from poles, illegal tapping of crude oil flowing within oil pipelines, or alteration of banker’s cheques and school certificates/results. No one sprays electricity, crude oil, cheques or diplomas.
Also, using the ejusdem generis rule of interpretation, ‘tampering with’ under Section 21(1) cannot be stretched to cover ‘spraying of, dancing or matching (sic) on…’ under Section 21(3). The items are of different kinds. Clearly, the Bobrisky charges for spraying under Section 21(1) are manifestly incompetent and fundamentally defective.
Charging Bobrisky with two separate and distinct offences, requiring different sets of facts in a single charge, constitutes an improper misjoiner of offences—a fundamental defect, which deprived Bobrisky of his statutory and constitutional right to proper arraignment, valid criminal trial and fair hearing, robbing the court of jurisdiction.
c. Sections 20 and 21 of CBN Act violate Sections 1(3) and 39 of the 1999 Constitution as to Bobrisky’s symbolic speech?
Section 1(3) of 1999 Constitution entrenches the supremacy of the Constitution over every other law, including CBN Act. Similarly, Section 39 of the Constitution guarantees the right to freedom of expression and the press. Bobrisky’s symbolic speech acts fall within protected conduct (to emphasise Nigerian currency’s intrinsic worthlessness)—symbolic speech (similar to flag burning, currency burning, etc). Currencies may be burnt to communicate messages, either for artistic effect, form of protest, or signals. Publicly burning money is an act of protest, or artistic statement. In 1984, Serge Gainsbourg burned a 500 French franc notes on television, to protest against heavy taxation. Also, in 2010, spokesperson for Swedish Feminist Initiative, Gudrun Schyman, burned SEK 100,000 during a speech about the inequality in wages for men and women. Similarly, in Texas v Johnson, 491 U.S. 397 (1989), the issue was whether flag burning constitutes “symbolic speech” protected by the First Amendment to the US Constitution? The Supreme Court held that, burning the American Flag was a constitutionally protected speech.
Bobrisky’s symbolic speeches cannot be punished.
d. EFCC is not statutorily empowered to prosecute cases of abuse of Naira involving no issue of fraud or corruption.
A holistic reading of Section 6(a)&(b) of the Economic and Financial Crimes Commission (Establishment) Act 2002 (EFCC Act), states that:
6: The Commission shall be responsible for –
(a) the enforcement and the due administration of the provisions of this Act;
(b) the investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam, etc.
Using the ejusdem generis rule of interpretation, the nature of crimes mentioned under Section 6(b), entail situations where a defendant has dispossessed a third party of money or property, or where fraud is used to dispossess. However, the allegations against Bobrisky did not show fraud or that the monies allegedly ‘sprayed’ belonged to a third party – the monies were Bobrisky’s monies. EFCC has no jurisdiction over such activities. EFCC cannot prosecute offences either under the Criminal Code or the CBN Act, that are not caught by Section 6 of EFCC Act, as neither the Criminal Code nor the CBN Act was mentioned under Section 6 of the EFCC Act. Anajemba v FRN (2004) LLJR-CA.
Furthermore, EFCC has no prosecutorial power in the Bobrisky case. This accords with Wheatbaker Investments and Properties Limited v EFCC & FIRS (Suit No: FHC/L/CS/244/21), where the FHC held that the EFCC lacked the legal power of assessment and collection of taxes. Also, in Heritage Energy Operational Services Limited v Revenue Mobilisation Allocation and Fiscal Commission & EFCC (Suit No. FHC/L/CS/330/2021) the FHC held that the RMAFC lacked the powers to assess, demand, and collect taxes (including WHT and VAT) from private individuals and corporate entities. The Court held that law enforcement agencies, such as the EFCC, cannot act “capriciously and ultra vires” their enabling statutes. Similarly, EFCC is not mentioned at all in the CBN Act. EFCC is an intermeddler.
e. Bobrisky had no specific intent to abuse the Naira
Sections 20-21 of CBN Act do not create a ‘strict liability’ offence. A conviction under the statute must require animus or scienter. Charges and offer of proof, show Bobrisky having fun at event centres and parties. No national TV to burn, tamper or destroy the currencies. There was never an intention. Under Section 16 of Crimes (Currency) Act of Australia1981and the Currency Act of Singapore, ‘specific intent’ to mutilate, tamper, or destroy the currency is required. It is not a strict liability offence.
Conclusion
The appeal must focus on denial of constitutional rights to freedom of speech and press, and to fair hearing (effective legal representation/ineffective assistance of counsel), as well invalid/defective charges.
Olumide Obayemi SJD, Legal Practitioner, Lagos
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