ROE LIMITED VS UNIVERSITY OF NIGERIA
April 13, 2025ALA ATUBOKIKI IBANIBO vs. FEDERAL REPUBLIC OF NIGERIA
April 13, 2025Legalpedia Citation: (2018) Legalpedia (CA) 85601
In the Court of Appeal
Thu Jan 11, 2018
Suit Number: CA/L/1045C/2016
CORAM
TIJJANI ABUBAKAR JUSTICE, COURT OF APPEAL
TIJJANI ABUBAKAR JUSTICE, COURT OF APPEAL
RITA NOSAKHARE PEMU JUSTICE, COURT OF APPEAL
TIJJANI ABUBAKAR JUSTICE, COURT OF APPEAL
TIJJANI ABUBAKAR JUSTICE, COURT OF APPEAL
TIJJANI ABUBAKAR JUSTICE, COURT OF APPEAL
TIJJANI ABUBAKAR JUSTICE, COURT OF APPEAL
TIJJANI ABUBAKAR JUSTICE, COURT OF APPEAL
TIJJANI ABUBAKAR JUSTICE, COURT OF APPEAL
RITA NOSAKHARE PEMU JUSTICE, COURT OF APPEAL
TIJJANI ABUBAKAR JUSTICE, COURT OF APPEAL
TIJJANI ABUBAKAR JUSTICE, COURT OF APPEAL
TIJJANI ABUBAKAR JUSTICE, COURT OF APPEAL
RITA NOSAKHARE PEMU JUSTICE, COURT OF APPEAL
RITA NOSAKHARE PEMU JUSTICE, COURT OF APPEAL
RITA NOSAKHARE PEMU JUSTICE, COURT OF APPEAL
UGOCHUKWU ANTHONY OGAKWU
RITA NOSAKHARE PEMU JUSTICE, COURT OF APPEAL
TIJJANI ABUBAKAR JUSTICE, COURT OF APPEAL
TIJJANI ABUBAKAR JUSTICE, COURT OF APPEAL
UGOCHUKWU ANTHONY OGAKWU
RITA NOSAKHARE PEMU JUSTICE, COURT OF APPEAL
TIJJANI ABUBAKAR JUSTICE, COURT OF APPEAL
UGOCHUKWU ANTHONY OGAKWU
RITA NOSAKHARE PEMU JUSTICE, COURT OF APPEAL
TIJJANI ABUBAKAR JUSTICE, COURT OF APPEAL
PARTIES
M.V. LONG ISLAND APPELLANTS
FEDERAL REPUBLIC OF NIGERIA RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant is owned by the 3rd Accused, GFL Marine Services Ltd., a logistics supply Company. The 3rd Accused entered into a charter party agreement with the 2nd Accused (Afa Global Impex Services Ltd., a shipping Company). The Appellant and 22 others were arrested by the Nigerian Navy for dealing in petroleum products without licence contrary to Section 19(6) of the Miscellaneous Offences Act, Cap M17 Laws of the Federation of Nigeria 2004. They were handed over to EFCC which investigated the matter and subsequently arraigned the Appellant and others before the Federal High Court, Lagos Division, on a 3 count charge for conspiracy, dealing in petroleum products without lawful authority or appropriate license and storing approximately 200 metric tons of petroleum products without lawful authority or appropriate license. They pleaded not guilty to counts and upon the completion of trial, the court found them guilty and sentenced the 4th -22nd accused persons to 2 years imprisonment with an option of fine of N200, 000.00 on each count while the Appellant, the 1st accused person (the vessel) at the lower court and its cargo were forfeited to the Federal Government. The 2nd & 3rd accused persons were sentenced to pay a fine of N200, 000.00 each on Counts 1, 11 and 111. Aggrieved by the trial court’s decision, the Appellant has filed this appeal before this court.
HELD
Appeal Dismissed
ISSUES
Whether the Respondent proved the offences as charged in Counts 1, 2 and 3 of the charge beyond reasonable doubt against the 1st Accused/Appellant? Whether the order for the forfeiture of the 1st accused/Appellant (MV Long Island) to the Federal Government was properly made.
RATIONES DECIDENDI
CHARTER PARTY – MEANING AND NATURE OF A CHARTER PARTY AGREEMENT
“A charter party agreement is generally the contract of hiring the ship or vessel on a given voyage or for a given period of time, generally known by the specific nature as time, usage, management, voyage and demise (bare boat)charter. The agreement usually imposes certain obligations on the owner of the vessel and part of which entails making the vessel sea worthy. The charter was fundamentally for the lifting of petroleum products as clearly specified in the Charter agreement. The Charterer was also responsible for the crewing of the vessel, payment of crew salary, the welfare, minor maintenance, safety of the vessel and crew members and the vessel owner was only going to be responsible for major maintenance and servicing of the vessel during the period of the agreement. This is similar to a bare boat charter party. Under a bare boat charter party, the charterer not only has the use of the chartered vessel, the charterer or hirer also engages or employs its own crew, the master and the crew are the charterer’s servants, the charterer puts its own stores, bunkers etc. In other words, the possession and control of the vessel vest in the charterer, see the case of Franco Daval Ltd V Owners Of M.V. Vitali 11 & Anor (NSC) VOL.1 @ 630”.
CRIMINAL TRIAL – WHETHER CHARGING AN ACCUSED PERSON FOR AN OFFENCE UNDER A WRONG LAW OR SECTION OF THE LAW WILL LEAD TO HIS ACQUITTAL
“It is trite that where an offence is unknown to law, no Court can convict on such, see Akinola Olatunbosun V The State (2013) LPELR-20939 (SC) wherein AKAAHS, J.S.C held thus: “The bone of contention in the dissenting judgment by Denton West JCA is anchored on the view that the appellant was charged under the punishment section and not the section that created the offence. That argument will hold water only if the offence for which the appellant was convicted is not known to law. If the facts on which an appellant was convicted are known to law the fact that accused is charged under a wrong law or section of the law, will not lead to his acquittal. See: Alhaji Mujahid Dokubo-Asari v Federal Republic of Nigeria (2007) 5-6 SC 150; Aminu Mohammed v State (2007) 7 NWLR (Pt.1032) 152.” When the facts on which the Appellant was convicted are known to law, the fact of the Appellant being charged under a wrong law or section of a law cannot lead to his acquittal. The contention here is not that the facts are unknown to law. The Appellant’s counsel by his own showing admitted that there are sections under which the offence can come under. That is totally different from a situation where the offence is not known to law, see Arije v FRN (2013) LPELR-22125 (CA); Skypower Airways Ltd v Olima (2005) 18 NWLR (PT. 957) 224; Okoh v The State (2013) LPELR- 21009(CA). The mere citing of a wrong section of the law which the charge was brought is therefore not fatal and the subtle objection is misplaced and a misconception. It is discountenanced. The correct section of the law is Section 1 (17) of the Miscellaneous Offences Act”.
CRIMINAL LIABILITY – CRIMINAL LIABILITY OF A BODY CORPORATE
“As a legal person, it can therefore be criminally liable through and by the actions of its officers and or owners, see Section 65 of the Companies and Allied Matters Act, Bolton Engr Co. Ltd V Graham & Sons (1957) 1 QB 159”. PER Y. B. NIMPAR, J.C.A.
CONSPIRACY – MEANING OF CONSPIRACY
“Conspiracy is generally known to be an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful/ illegal act, coupled with an intent to achieve the agreement’s objective. The apex Court on the meaning of conspiracy had this to say: “A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as the design rests on intention only, it is not indictable. When two or more agree to carry it into effect, the very plot is an act in itself, and act of each of the parties, promise against promise, actus contactum, capable of being enforced if lawful, punishable if a criminal object or for the use of criminal means. See Mukahy v R (1965) 3 H.L.317; Dr. Oduneye V The State (2001) 5 NSCQR 1 at page 11.”
CONSPIRACY – ELEMENTS OF CONSPIRACY
“It is trite that conspiracy consists of two elements which are: i. That there is an agreement by two or more persons to do or cause to be done an illegal act or a legal act by illegal means. ii. That the accused person participated in the conspiracy at any point in time. See Adeyemi V State (2017) LPELR- 42584 (SC)”.
CONSPIRACY – PRINCIPLE OF CONSPIRACY
“It is trite that direct evidence is hardly available but the guiding principle is the meeting of the minds of the conspirators. The agreement is usually shrouded in secrecy since such meetings have no minutes of meeting and since it is the agreement of the minds, it is usually stored in the minds. The agreement may be express or implied, but the offence is complete once the parties agree to effect an unlawful purpose. It must also be noted that a conspiracy is a continuing offence, other persons may join an existing conspiracy and become parties to it. A common intention is essential in proving the offence of conspiracy. Evidence of conspiracy is usually a matter of inference from surrounding facts and circumstances as direct evidence is hardly capable of proof. The trial Court may infer conspiracy from the facts of doing things towards a common purpose. It is also trite that conspiracy is a distinct and separate offence from whatever other offence it is lumped together with, see Obiakor v State (2002) 10 NWLR (PT 776) 612, Oduneye V State (2001) 12 WRN 88, POSU V STATE (2011) 3 NWLR (1234) 393”.
PETROLEUM PRODUCT – MEANING OF PETROLEUM PRODUCT
“The meaning of Petroleum product is the meaning given to it by the petroleum Act, see Section 15 of the Act thus: “petroleum products” includes motor spirit, gas oil, diesel oil, automotive gas oil, fuel oil, aviation fuel, kerosene, liquefied petroleum gases and any lubrication oil or grease or other lubricant.” –
INGREDIENTS OF THE OFFENCE OF DEALING WITH PETROLEUM PRODUCTS WITHOUT LICENSE – SECTION 1(17) OF THE MISCELLANEOUS OFFENCES ACT
“The law totally outlawed dealing with petroleum products without license excluding the exemption in Section 4 (2) of the Petroleum Act. Section 1(17) of the Miscellaneous Offences Act of the states thus: “Any person who without lawful authority or an appropriate licence- (a) Imports, exports, sells, offers for sale, distributes, or otherwise deals with or any crude oil, petroleum or petroleum product in Nigeria. (b) Does any act for which a licence is required under the Petroleum Act. Shall be guilty of an offence and liable on conviction to imprisonment for life and in addition, any vehicle, vessel, aircraft or other conveyance used in connection therewith shall be forfeited to the Federal Government.”
BURDEN OF PROOF – INGREDIENT A PROSECUTION MUST PROVE IN THE OFFENCE OF DEALING WITH PETROLEUM PRODUCTS WITHOUT LICENSE
“The allegation is dealing in or with petroleum products. Indeed that is one of the ingredients of the offence. The prosecution is duty bound to prove that the Appellant dealt with or in petroleum products without licence, see the case of Frank Opoku Anim & Ors V FRN (2014) LPELR- 23219 (CA) 29 @ 34 where the learned jurist, SAULAWA, JCA held: “To prove that the offence in question, the prosecution must show that the appellants had dealt with or in crude oil or petroleum product in Nigeria without lawful authority.” –
DEAL WITH – DEFINITION OF “DEAL WITH”
“The Apex Court in the case of Abacha V FRN (2014) LPELR-22014(SC) defined the term thus: “The phrase – “deal with” means to take action on, to be about or concern with”. Taken from chambers Dictionary. Per ARIWOOLA, J.S.C. –
EJUSDEM GENERIS RULE – MEANING OF EJUSDEM GENERIS RULE
“The rule of ejusdem generis was defined by the Apex Court in the case of Chief (Mrs) Olufunke Victoria Ehuwa V Ondo State Independent Electoral Commission & Ors (2006) LPELR- 1056(SC) thus: “The rule simply means that in interpreting the provisions of a statute, general words which follow particular and specific words of the same nature as themselves take their meaning from these specific words.” And in the case of Ojukwu v Obasanjo & Ors (2004) LPELR-2400 (SC) as follows: “The ejusdem generis rule is an interpretative rule which the Court applies in an appropriate case to confine the scope of general words which follow special words as used in a statutory provision or document within the genus of those special words. In the construction of statutes, therefore, general terms following particular ones apply to such person or thing as are ejusdem generis with those understood from the language of the statute to be confined to the particular terms, in other words, the general words or terms are to be read as comprehending only things of the same kind as that designated by the preceding particular expression unless there is something to show that a wider sense was intended.”
BURDEN OF PROOF – DISTINCTION BETWEEN THE EVIDENTIAL AND LEGAL BURDEN OF PROOF
“I agree with the Appellant that the legal requirement is for the prosecution to prove its allegation beyond reasonable doubt, see Amadi v. Federal Republic Of Nigeria (2008) 12 S.C. (PT. III) 55. However, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt, see Smart v. State (2016) LPELR-40827(SC). The allegation against the Appellant herein was fundamentally a criminal trial. The burden of proof rests squarely with the Respondent herein from the beginning to the end of trial. There is however what is called evidential burden. This arises after the satisfactory discharge of the legal burden of proof which is the foundation upon it can shift from one side of a case to the other. Where a party fails to discharge the legal burden or onus of proof placed on him, the basis on which the evidential burden can arise would be absent or non-existent, see Gilsod Associates Limited V Association Of Local Government Of Nigeria (ALGON) (2011) LPELR-4197 (CA). There is a distinction between burden of proof and evidential burden, firstly in law, a distinction is drawn between burden of proof of a case which as an inflexible rule rests on the plaintiff in civil matters and evidential burden which places the onus of proof on one making a specific assertion over a particular point essential to his stand on the matter regardless of whether the person making the assertion is the defendant. It is undisputable that the burden of proof rests on the prosecution from beginning of a criminal trial to end. As a doctrine of law of Evidence, evidential burden imports that where a given allegation, whether affirmative or negative, forms an essential part of a party’s case the onus of proof of such allegation rests on him, see Arum V Nwobodo (2004) 9 NWLR (PT. 878) 411; Motanya V Elinwa (1994) 7 NWLR (Pt.356) 252.Generally, evidential burden is complimentary to the general principle of burden of proof that has its origin in Sections 131 – 137 of the Evidence Act, 2011 and wherever its application is warranted, it is said that the burden of proof to establish a particular assertion has shifted, See Elemo V Omolade (1968) NMLR 359. The Apex Court has summed up the principles in the case of Osawaru V Ezeiruka (1978) 6 -7 CS 135 at 145”
BURDEN OF PROOF – ON WHO LIES THE BURDEN OF PROVING POSSESSION OF THE CONTROLLED PRODUCT OR SUBSTANCE
“The requirement of the law is that those dealing with petroleum products must have licence from appropriate authorities before venturing into the business of dealing with petroleum products. See Section 4 (1) (2) of the Petroleum Act. It is a strict liability offence. The physical presence of the petroleum product on board has effectively discharged the need for proof of mens rea on the part of the accused persons. See the decision of my learned brother IKYEGH, J.C.A in Hepa Global Energy Ltd V Federal Republic Of Nigeria (Unreported Suit No. CA/L/147CA/2016) delivered on the 14th day of July, 2017 where he held thus: “Statutory provisions dealing with unlawful possession of product or substance and/or without licence or lawful authority wear the toga of strict liability. Once a person is found in possession of the controlled product or substance or the prosecution has proved possession the onus shifts to the person found in possession of the product or substance to justify his possession. See the proviso to Section 36 (5) of the 1999 Constitution, Section 139 (1) of the Evidence Act and Nigeria Air Force V Kamadeen (2007) ALL FWLR (PT 367) 1676. If lawful authority is needed by the statute to justify the possession the person found with the controlled product or substance has the bounden duty to produce evidence of the lawful authority. Where an appropriate licence is required, the person found in possession of the controlled product or substance must produce the appropriate licence to justify his possession of the product or substance. See for example, Attorney- General Eastern Nigeria V Osiala (1964) N.M.L.R 104 @ 107 to the effect that a person found in possession of a controlled product or substance has the burden to produce the appropriate licence or show the lawful authority for having the product or substance in his possession following the English case of R V. Oliver (1943) 2 ALL ER 800. See also Slap V Ag Federation (1968) NSCC 19.”
INDEMNIFY – MEANING OF INDEMNIFY
“To indemnify is to- “reimburse another for a loss suffered because of a 3rd party or one’s own act of default or to promise to reimburse another for such a loss” See the case of Abacha V FRN (2014) ALL FWLR (PT 726) 412 @ 456 referring to Black’s Law Dictionary, 9th Edtn. 837”
OFFENCE OF DEALING WITH PETROLEUM PRODUCT WITHOUT LICENSE – BASIS FOR THE ORDER OF FORFEITURE OF ANY VEHICLE, VESSEL, AIRCRAFT OR OTHER CONVEYANCE USED IN THE COMMISSION OF THE OFFENCE OF DEALING WITH PETROLEUM PRODUCT WITHOUT LICENSE
“The statutory provision relied upon by the trial Court in making the order of forfeiture of the appellant is Section 1(17) of the Miscellaneous Offences Act which states thus: 17 (1) Any person who without lawful authority or an appropriate licence- a. imports, exports, sells, offers for sale, distributes or otherwise deals with or in any crude oil, petroleum or petroleum product in Nigeria; b. does any act for which a license is required under the Petroleum Act, shall be guilty of an offence and liable on conviction to be sentenced to imprisonment for life, and in addition, any vehicle, vessel, aircraft or other conveyance used in connection therewith shall be forfeited to the Federal Government. “Forfeiture of the product is covered by Section 4(4) of the Petroleum Act”.
CASES CITED
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999
Economic and Financial Crimes Commission Act
Miscellaneous Offences Act, Cap M17,
Laws of the Federation of Nigeria 2004
Laws of the Federation of Nigeria 2004
