Legalpedia Citation: (2025-02) Legalpedia 15912 (CA)

In the Court of Appeal

Holden at Abuja

Fri Feb 14, 2025

Suit Number: CA/ABJ/CR/1097/2020

CORAM

Peter Chudi Obiorah Justice of the Court of Appeal

Eberechi Suzzette Nyesom-Wike Justice of the Court of Appeal

Oyejoju Oyebiola Oyewumi Justice of the Court of Appeal

PARTIES

MAHMOUD ALIYU

APPELLANTS

FEDERAL REPUBLIC OF NIGERIA

RESPONDENTS

AREA(S) OF LAW

CRIMINAL LAW, FOREIGN EXCHANGE REGULATIONS, EVIDENCE LAW, BURDEN OF PROOF, AGENCY, VICARIOUS LIABILITY, APPEAL, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

This case revolves around the criminal conviction of Mahmoud Aliyu (the Appellant) by the Federal High Court, Abuja for receiving cash payment for the sale of landed property contrary to Section 22(1)(a) of the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act, Cap F34, Laws of the Federation 2004.

The Appellant, while employed at the Federal Housing Authority, received $10,000.00 and N600,000.00 as payment for the sale of a house described as No. 3 (1H) 2 Road, Federal Housing Estate, Lugbe, Abuja. The transaction was allegedly conducted on behalf of one Major Sanusi Nasir Muazu. The purchaser, Mrs. Hafsat Hamza Al-Mustapha, was later ejected from the property by the Federal Housing Authority on the grounds that Major Muazu was not the actual owner of the property. This led to a petition to the ICPC, which investigated and subsequently charged the Appellant.

At trial, the prosecution called two witnesses and tendered two exhibits: an acknowledgment receipt signed by the Appellant for the $10,000.00 (Exhibit 1) and the Appellant’s extra-judicial statement (Exhibit 2). The Appellant, in his defense, claimed he acted merely as an agent for Major Sanusi Muazu, who was the actual seller of the property. The Appellant tendered a Deed of Assignment (Exhibit 4) between Major Muazu and Miss Mimie H.M. to support his claim. However, the Appellant failed to produce Major Muazu at trial or provide evidence that he had transferred the money received to Major Muazu.

After trial, the Federal High Court found the Appellant guilty and sentenced him to 12 months imprisonment or a fine of N1,000,000.00. Dissatisfied with this judgment, the Appellant appealed to the Court of Appeal.

HELD

1. The appeal was dismissed.
2. The Court of Appeal affirmed the judgment of the Federal High Court, Abuja, delivered by Hon. Justice Ijeoma L. Ojukwu on October 8, 2020.
3. The Court held that the prosecution had established all the ingredients of the offence under Section 22(1)(a) of the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act beyond reasonable doubt.
4. The Court rejected the Appellant’s defense that he acted as an agent of Major Sanusi Muazu, finding that the Appellant failed to prove the existence of his purported principal or that he transferred the received funds to said principal.
5. The Court further held that even if the agency relationship had been established, it would not have absolved the Appellant from criminal liability as there is no vicarious liability in criminal law in Nigeria.

ISSUES

1. Whether the lower Court was right in its decision when it convicted and sentenced the Appellant in the face of the alleged failure by the Prosecution to prove the essential ingredients of the offence charged? (as formulated by the Appellant)
2. Whether from the entirety of the evidence presented before the Court, the Respondent established the offence alleged against the Appellant in line with the well-established principle of proof beyond reasonable doubt? (as formulated by the Respondent)

RATIONES DECIDENDI

ESSENTIAL INGREDIENTS OF OFFENCE — WHAT PROSECUTION MUST PROVE UNDER SECTION 22 OF THE FOREIGN EXCHANGE ACT

In order to secure a conviction for an offence under Section 22 of the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act, 2004, the prosecution is expected to establish the following ingredients of the offence prescribed: a. The defendant must be a person, whether juristic or natural person. b. There must be a landed property. c. The landed property must have been sold for valuable consideration i.e. money. d. The Defendant received/accepted cash payment for the sale of the landed property. –– Per PETER CHUDI OBIORAH, J.C.A.

STANDARD OF PROOF — PROOF BEYOND REASONABLE DOUBT REMAINS THE STANDARD

Like in every criminal trial, the standard remains proof beyond reasonable doubt as enshrined in Section 135 of the Evidence Act, 2011.-– Per PETER CHUDI OBIORAH, J.C.A.

BURDEN OF PROVING FACTS SPECIALLY WITHIN KNOWLEDGE — APPELLANT’S BURDEN TO PROVE EXISTENCE OF ALLEGED PRINCIPAL

There is no doubt that the Appellant had the burden to produce his principal, Major Sanusi Muazu, if it is true that he acted on his behalf as agent or even lead evidence that such a person truly exists.” — Per PETER CHUDI OBIORAH, J.C.A.

SPECIAL KNOWLEDGE — FACTS SPECIALLY WITHIN KNOWLEDGE OF A PERSON MUST BE PROVED BY HIM

May I repeat that the fact of the existence of Major Sanusi Muazu and that he appointed the Appellant as his agent for the transaction is a matter specially within the knowledge of the Appellant and the evidential burden is on the Appellant to show that such a principal exists by virtue of Section 140 of the Evidence Act, 2011, which provides that when a fact is especially within the knowledge of any person, the burden of proving that fact is upon him. — Per PETER CHUDI OBIORAH, J.C.A.

SHIFT IN BURDEN — WHEN PROSECUTION HAS ADDUCED SUFFICIENT EVIDENCE

I therefore find no reason to interfere with the lower Court’s finding on this. The burden of proving a charge against an accused person is undoubtedly on the prosecution and the Courts have never missed an opportunity to restate this very important principle of law. However, once the prosecution has adduced evidence, which includes circumstantial evidence, which shows that the accused is guilty of the offence charged, the burden of proving that he is innocent shifts to the accused by virtue of the provisions of the Evidence Act. — Per PETER CHUDI OBIORAH, J.C.A.

AGENCY DEFENSE IN CRIMINAL LAW — INSUFFICIENCY OF MERE CLAIM OF AGENCY

The Appellant failed woefully to prove that he acted as agent of anyone in the transaction that gave rise to the criminal charge against him. Apart from his unsubstantiated viva voce evidence, he failed to show that the money he received for the sale of the property was passed to his alleged principal.– Per PETER CHUDI OBIORAH, J.C.A.

VICARIOUS LIABILITY — NO VICARIOUS LIABILITY IN CRIMINAL LAW

I need to quickly add that even the defence of agency which I think is a fable would not have availed the Appellant assuming he proved that Major Sanusi Major exists and that he truly acted on his behalf. This is because there is no vicarious liability in the realm of criminal law in Nigeria.” — Per PETER CHUDI OBIORAH, J.C.A.

PERSONAL NATURE OF CRIMINAL LIABILITY — CRIMINAL RESPONSIBILITY IS PERSONAL NOT VICARIOUS

It appears that the appellant is merely adumbrating the principles of agency and vicarious liability, which in criminal proceedings do not avail him. Criminal liability or responsibility operates on mens rea criminal liability or responsibility is therefore personal, and not vicarious. — Per PETER CHUDI OBIORAH, J.C.A.

APPELLATE INTERFERENCE — WHEN APPELLATE COURT CAN EXAMINE TRIAL COURT’S INFERENCES

An appellate Court has a duty to examine the grounds upon which the conclusions or inferences of the trial Court were based and if convinced that the inferences were erroneous the appellate Court would be justified in rejecting those inferences.” — Per PETER CHUDI OBIORAH, J.C.A.

ASSESSMENT OF EVIDENCE — APPELLATE COURT’S APPROACH TO APPEALS ON FACTS

It is not the business of a Court of Appeal to substitute its own views of the facts for those of the Judge or tribunal that had heard and seen the witnesses but if the Judge or tribunal has failed to make proper use of the opportunity of seeing and hearing the witnesses, or if from stated or uncontroversial or indisputable facts, inferences are shown to have been drawn which are wrong or are not supported by the evidence, then the Court of Appeal must in the interest of justice exercise its own power of reviewing those facts and drawing appropriate inferences from them. –– Per PETER CHUDI OBIORAH, J.C.A.

EVIDENTIAL VALUE OF DOCUMENTS — PRIMARY VERSUS SECONDARY DOCUMENTS

It is not enough for the Appellant to flaunt the Deed of Assignment and claim that the document shows Major Sanusi Muazu as the receiver of the money. Exhibit 4 is a secondary document because the primary document is Exhibit 1 personally made by the Appellant where he acknowledged the receipt of $10,000.00. — Per PETER CHUDI OBIORAH, J.C.A.

TRIAL COURT’S INFERENCES — SOUNDNESS OF TRIAL COURT’S REASONING

From every angle I have looked at the evidence placed before the lower Court, I cannot agree less with the inferences and conclusion reached by the lower Court. I find the inferences and conclusion to be logical, sound and unassailable in law.– Per PETER CHUDI OBIORAH, J.C.A.

AFFIRMATION OF TRIAL COURT’S JUDGMENT — WHEN APPEAL LACKS MERIT

My Lords, it is my firm opinion that there is no merit in this appeal. I have no doubt that the judgment of the lower Court is a product of sound reasoning and proper evaluation of the evidence placed before it. The judgment cannot be punctured. It follows that this appeal is bound to fail and it has failed. It is accordingly dismissed. — Per PETER CHUDI OBIORAH, J.C.A.

CASES CITED

STATUTES REFERRED TO

1. Foreign Exchange (Monitoring and Miscellaneous Provisions) Act, Cap F34, Laws of the Federation 2004
2. Evidence Act, 2011
3. Criminal Code

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