CORAM
IFEOMA JOMBO-OFO JUSTICE, COURT OF APPEAL
MOHAMMED BABA IDRIS JUSTICE, COURT OF APPEAL
ADEBUKOLA I. BANJOKO JUSTICE, COURT OF APPEAL
PARTIES
SCALES OLATUNJI ISHOLA ………………….. APPELLANT
APPELLANTS
FEDERAL REPUBLIC OF NIGERIA ……….. RESPONDENT
RESPONDENTS
AREA(S) OF LAW
Constitution of the Federal Republic of Nigeria 1999 (as amended)
Evidence Act 2011
Money Laundering Act
Cybercrime (Prohibition, Prevention) Act 2015
Administration of Criminal Justice Act 2015
Court of Appeal Fast track Practice Direction 2021
Rules of Professional Conduct 2007
EFCC Establishment Act
SUMMARY OF FACTS
The crux of the Prosecution’s case is that they received intelligence from Interpol concerning the activities of a syndicate of fraudsters that specialize in business email compromise (BEC fraud) and CEO (Chief Executive Officer) fraud. It was discovered during meetings held in France with the Danish, Norwegian, Austrian and Swiss police that in specific cases especially within Norway, there was a loss of over six hundred thousand euros and also attempts of BEC fraud within all member states present at the meeting. An email address was shared at the meeting and efforts had to made to ascertain the location of the email address as it was discovered that the user was using Virtual Private Network (VPN) to disguise location. A bait was set and the Appellant fell for it which gave the Norwegian police the opportunity to remotely search through the content of the laptop and during this search, they found several things belonging to the Appellant and his family. The Respondent later located him (the Appellant) in Nigeria and arrested him and he was thereafter taken into custody and subsequently arraigned before the trial court (Federal High Court sitting in Uyo) where he was arraigned on a 45 count charge bordering on the offences of money laundering and cybercrimes.
Judgment in the case was delivered in favour of the Respondent and the Appellant was convicted and sentenced to a term of 7 (seven) years imprisonment. The sums of money found in his account and the two properties shown to be proceeds of crime were to be forfeited and the proceeds therefrom are to be used in restitution for the Norwegian victims.
Dissatisfied with the said judgment of the court below, the Appellant filed made the instant appeal.
HELD
Appeal dismissed
ISSUES
Whether the learned trial judge was right when he held that the Prosecution established the guilt of the Appellant in the offence of Money Laundering as it relates to counts 6 – 45 of the charge having regard to the burden and standard of proof beyond reasonable doubt placed on the prosecution as a matter of law?
Whether the learned trial judge was right in holding that the Prosecution through its witnesses showed that the Action initiated to Norway caused the Norwegian victims to pay money in accounts in the United kingdom and that Charles Meraiyebu, a Nigerian residing in the United Kingdom owned/operated the United Kingdom bank account and the money transferred from Charles Meraiyebu Nigerian account to the Appellant’s account in Nigeria is the proceed from Norwegian victims contrary to the established evidence before the court that the money paid by Norwegian victims were withdrawn by unidentifiable person(s)?
Whether the learned trial judge was right when he held that it is the duty of the Appellant to call an expert witness to lead credible evidence to contradict the polygraph expert witness of the prosecution (PW3) thereby acted upon the evidence of PW3 as unchallenged?
Whether the learned trial judge was right when he held that the Prosecution through their witnesses proved that the Appellant made his statement voluntarily without inducement, threat or coercion and went ahead to admit it as Exhibit P34 in spite of the evidence adduced during trial within trial which established that the extra judicial confessional statement was made by the Defendant six (6) months after arraignment and in furtherance of a plea bargain agreement (Exhibit D1) was not voluntarily made by the Appellant thereby occasioning a grave miscarriage of justice?
Whether the learned trial judge was right when he went ahead to disqualify a competent witness for the Appellant on the rationale or premise that he once acted in a capacity of legal practitioner to the Appellant which amounts to denial of the right of fair hearing enshrined under the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended and consequently renders the trial within trial proceedings null and void and liable to be set aside ex debito nullito justicae to the Defendant thereby occasioning a miscarriage of justice?
Whether the failure of the learned trial judge to deliver judgment well over 90 days after the adoption of final addresses without any justiciable reason occasioned a miscarriage of justice against the Appellant?
Whether the learned trial judge was right in reaching a verdict of declaring the Appellant guilty on the premise that the evidence of PW1, PW2, PW3 and PW4 respectively were not hearsay evidence?
Whether the learned trial judge was right when he misapplied the decision of the court of appeal in Brilla Energy Ltd v FRN (2018) LPELR-43926 (CA) by the wrongful admission of inadmissible of inadmissible computer generated evidence- Exhibit P1, P2, P9, P12, P13, P14, P15, P16 – P33 without compliance with the mandatory statutory provisions of Section 84(1()2) and (4) of the Evidence Act 2011 and relying on same to convict the Appellant?
Whether the learned trial judge was right by holding that the defendant was aware that the money involved was from a criminal activity whereby the proof could be direct or through circumstantial evidence as applicable to the instant case?
RATIONES DECIDENDI
RULES OF COURT – EFFECT OF RULES OF COURT ABOUT PAGINATION
I have gone ahead to read the decision in the case cited by the Respondent. In the case of AKOLE & ORS VS. ALONGE & ANOR (2012) LPELR 14793, it was held:
“From a plethora of cases from the Apex Court and this Court, Rules of Court are meant to be obeyed and not made for fancy or for the sake of making Rules, they are made for a purpose, in this case to check verbose and long winded briefs that tend to go round and round and repetitive which says the same thing in too many words, thus making processes cumbersome, where an appellant’s brief is long if not checked, the respondent’s brief will likely also be long. The same argument in a bulky brief could be done in a concise manner; it makes the work less tedious for counsel and the Court.”
On the need to obey the Rules of Court, see generally, the cases of WILLIAMS VS. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1 – 2 S. C. 145; AFRICAN NIGERIA LTD VS. OWOSENI (1995) 2 NWLR (PT. 375) PAGE 110; OPERA VS. DOWELL SCHLUMBERGER NIGERIA LTD (1995) 4 NWLR (PT. 390) PAGE 440 and MULTIPURPOSE VENTURE LTD VS. A – G RIVERS STATE (1997) 9 NWLR (PT. 522) 642 AT 644, to the effect that it is trite that the Rules of Court are meant to be obeyed.
Rules of Court are meant to be obeyed, as they are made to assist in the quick dispensation of justice so as to give every party an equal opportunity within the ambits of the rules to present their cases before an impartial court.
On the filing of a brief of argument in accordance with the rules, Kolawole, JCA (as he then was) reiterated in the case of OYEBADE VS. AJAYI (1993) 1 NWLR (PT. 269) 313 AT 326, as follows:
“In BIOKU INVESTMENT AND PROPERTY CO. LTD V. LIGHT MACHINE INDUSTRY NIG. LTD AND ANOR (1986) 5 NWLR (PT. 39) 42, I said at pages 45 – 46 as follows:-
“we have said in this Court repeatedly that the rules relating to the filing of briefs must be observed. When a brief is filed which is not in conformity with the provisions of the rules, the consequences are that no brief has been filed….”
The resultant effect is that the above rule can not avail the Appellant. In support of this view, in the case of AFOLABI VS. IGUNBOR (1992) 8 NWLR (PT. 257) 115 at 127, R.D MUHAMMAD JCA, (as he then was) held that:
“The law must always take its course and the Rules of Court must prima facie be obeyed, unless there are special circumstances to warrant deviation from the rules.”
… I do not think it is fair and in anyway reasonable for me to turn my eyes to all merit that might be contained in his brief of argument just because his counsel got carried away and prepared a lengthy brief. Inasmuch as Rules of Court are meant to be obeyed, we should also remember that they are made to assist in quick dispensation of justice so as to give every party equal opportunity within the ambits of the rules to present their cases before an impartial court. I am of the opinion that this court has the discretion to make the appropriate orders that will give both parties a fair opportunity to present their case to be heard on the merits.
In the Supreme Court case of WAZIRI VS. GUMEL & ANOR (2012) LPELR – 7816 (SC) (PP. 29 – 30 PARAS. F) it was held per Adekeye, JSC that:
“Judicial discretion is a term applied to the discretionary action of a judge or court bounded by the rules and principles of law not giving effect to the will or private opinion and not to humour. It is a discretion exercised judicially and judiciously. A judicial discretion is based upon facts and circumstances presented to the Court from which it must draw a conclusion governed by law, justice and common sense.” – Per M. B. Idris, JCA
EXPERT EVIDENCE- CONDUCT OF COURT REGARDING EXPERT EVIDENCE
In the case of FAYEMI VS. ONI (2009) 7 NWLR (PT. 1140) 223 @ 277 F – 278 B the Court referred to and relied on the dictum of R. D. Muhammad, JCA in NGIGE VS. OBI (2006) 14 NWLR (PT. 999) 1 @ 143 E – H on the position of the law regarding the evidence of an expert. His Lordship held: “A court is entitled to accept the evidence of an expert if is credible, particularly if it is not controverted or challenged and the expert demonstrates his skills. However, the evidence of an expert is generally an aspect of the entire evidence to be evaluated by a court because a trial court must be fully in control of all the evidence before it and must not abdicate its primary duty of assessing the evidence and forming its clear opinion in relation thereto, including any expert evidence. In other words, a court is not bound by the evidence of an expert witness, it has an opinion in the matter that it must exercise judicially and judiciously. It was held in the case of Bello Vs Ringim (1991) 7 NWLR (206) 668 @ 676 B – C per Achike, JCA:
“It must be borne in mind that the evidence of an expert is not sacrosanct. Like the evidence of other witnesses … the trial judge has a duty to evaluate the evidence of experts and thereafter he has a responsibility to accept or refuse to accept their testimonies in reaching a conclusion on whether or not the negligence of the appellant has been proved or not. In other words, a lot depends on the weight the court ultimately attaches to such expert evidence.”
See also: Tuah vs. Michael (2010) 10 NWLR (1203) 519; A. N. P. P. & Anor vs Usman (2008) 12 NWLR (PT. 1100) 1 @ 73.” – Per M. B. Idris, JCA
EXPERT EVIDENCE – DISCRETION OF THE COURT REGARDING EXPERT EVIDENCE
The courts have a wide discretion in agreeing and relying on expert evidence. They are not bound by law to mandatorily adopt same. If there are some grey areas in the testimony of the expert evidence, it still lies within the discretion of the trial judge to decide the weight to be attached to such evidence. – Per M. B. Idris, JCA
CONFESSIONAL STATEMENT – MEANING OF CONFESSIONAL STATEMENT AND WHEN IT CAN BE MADE
In the Supreme Court case of AZABADA VS. STATE (2014) LPELR – 23017 (SC) (PP. 33 PARAS. A), it was held per Okoro, JSC as follows:
"By Section 28 of the Evidence Act, a confessional statement is a statement made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. Such a statement is admissible if it is direct and positive and relates to his own acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged. See Akpan v. State (1992) 7 SCNJ 22; Yesufu v. State (1976) 6 SC 167; Obasi v. State (1965) NWLR 129; Ogoala v. The State (1991) 2 NWLR (Pt. 175) 509." Flowing from the above cited authority, it is clear that the Supreme Court has held that a confessional statement can be made at any time which means before or during arraignment but definitely before judgment. – Per M. B. Idris, JCA
NATURAL JUSTICE – TWO PRINCIPLES OF NATURAL JUSTICE
In the case of EGBUCHU VS. CONTINENTAL MERCHANT BANK PLC & ORS (2016) LPELR – 40053 (SC) (PP. 10 – 11 PARAS. C – C) it was held per Kekere-Ekun, JSC that: "Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides: 36. (1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality. On the meaning of fair hearing, this Court in Inakoju vs. Adeleke (2007) 4 NWLR (Pt. 1025) 425 @ 618 E – F, held thus: "The constitutional provision mainly stems or germinates from two common law principles of natural justice. They are audi alteram partem and nemo judex in causa sua… The meaning of the Latinism [audi alteram partem] is "hear the other side; hear both sides. No man should be condemned unheard…" What the rule or doctrine means is that the parties must be given equal opportunity to present their cases to the court and no party should be given more opportunity or advantage in the presentation of his case."
In the case of OSUAGWU VS. THE STATE (2013) 5 NWLR (PT. 1347) P.389 – 390, the Supreme Court held that: "A trial within trial is a mini-trial that must be conducted when an accused person says that his confessional statement was not made voluntarily. It is the duty of the prosecution to lead evidence to show that the statement was made voluntarily while the accused person and his witnesses are to prove the opposite. This is a trial that the credibility of the witnesses and their demeanor are very important. In such a trial credibility of witnesses is based on demeanor. It is within a trial within trial that the defence counsel must ensure that the confessional statement is not admitted in evidence and not on appeal. An appeal court cannot or ought not to interfere since it never had the advantage of seeing the witness. It can only interfere if the findings were based on inference drawn from evidence in the instant case the trial court admitted Exhibit "E" as voluntarily made by the appellant. This was based on the finding of facts by the trial court based on credibility of witnesses after watching their demeanor. An Appeal Court would not upset such findings. (Underline mine for emphasis) The appellant cannot call in aid Section 46 of the Evidence Act in that regard, because the Section only relates to how evidence from a previous judicial proceeding may be admitted in a subsequent proceeding, as evidence of the truth of the fact which it states, when the witness cannot be called or where the said witness is kept away by the adverse party. Therefore, the request by the appellant for this Court to import the evidence from a latter proceeding (main trial) to vacate the trial court's decision in a previous proceeding (trial within trial) is not supported by law." – Per M. B. Idris, JCA
WITNESS – WHETHER A LEGAL PRACTITIONER CAN BE A COMPETENT WITNESS FOR THE ACCUSED IN STATING THE VOLUNTARINESS OF CONFESSIONAL STATEMENT
I agree with the reasoning of the learned trial judge when he held that the legal practitioner who is defending the Accused cannot be a competent and credible witness to state the voluntariness of his confessional statement. If he was allowed to be testify on behalf of the Accused, it would amount to “being a judge in his own cause.” How can the person who is defending an accused by way of legal representation also prove the voluntariness of a statement the Prosecution intend to use to nail his conviction? That is very impracticable and would be injustice to the prosecution. – Per M. B. Idris, JCA
DELIVERY OF DECISIONS – TIME FRAME FOR COURTS TO DELIVER THEIR DECISIONS AND EFFECT OF NON-COMPLIANCE WITH THE TIME FRAME
In the case of DALYOP VS. MADALLA (2017) LPELR – 43349 (CA) (PP. 48 – 49 PARAS. E), this Court held:
Section 294(1) and (5) of the 1999 Constitution as amended; provides: (1). Every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all the parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof. (5). The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof." By Section 294 (1) of the 1999 (as amended), cases heard by any superior court of record must have their judgments delivered 90 days after final addresses. However, by Section 294(5) of the 1999 Constitution; failure of a court of record to deliver its judgment within 90 days does not without more make the judgment a nullity. The complaining party has the burden of proving that such failure occasioned a miscarriage of justice to him."
In the case of AKOMA & ANOR VS. OSENWOKWU & ORS (2014) LPELR – 22885 (SC) (PP. 41 PARAS. B), the Supreme Court held per Onnoghen, JSC that:
"The question is what is the consequence(s) of the failure of the lower court, in the circumstances of the case, to deliver its decision within ninety days of the final addresses of counsel? The answer is that the judgment/decision/order so delivered is valid except an appellant can satisfy the court that the non delivery of the judgment within the stipulated time has occasioned a miscarriage of justice to him – see Section 294(5) of the 1999 Constitution; Owoyemi vs Adekoya (2003) 18 NWLR (pt. 852) 307." – Per M. B. Idris, JCA
EVIDENCE – WHEN OBJECTION TO ADMISSIBILITY OF EVIDENCE IS TAKEN
Section 84 of the Evidence Act 2011…
In the case of IPINLAIYE II VS. OLUKOTUN (1996) LPELR – 1532 (SC) (PP. 23 PARAS. B), the Supreme Court held per Iguh, JSC that:
It is the cardinal rule of evidence and practice in civil as well as in criminal cases that an objection to the admissibility of a document sought to be tendered in evidence is immediately taken when it is offered in evidence. Barring some exceptions where by law certain documents are rendered inadmissible (consent or no consent of the parties notwithstanding) for failure to comply with the provisions of such law (such as the provisions of Section 15 of the Land Instruments Registration Act) the rule remains inviolate that where objection has not been raised by the opposing party to the reception in evidence of a document or other evidence, the document or evidence would be admitted and the opposing party cannot afterwards be heard to complain about its admission. See Chief Bruno Etim and Others vs. Chief Okon Ekpe and Another, supra at page 36 – 37."
In the case of JOHN VS. STATE (2017) LPELR – 48039 (SC) (PP. 54 – 55 PARAS. E), the Apex Court held per Muhammad, JSC that:
There is no evidence from the record of this appeal that the appellant had objected to the admissibility of Exhibit 1 at the trial court. It remains a cardinal rule of evidence and practice in civil and criminal cases that an objection to the admissibility of a document sought tendered in evidence is immediately taken when the document is offered in evidence. It is part of the inviolate rule that where objection has not been raised by the opposing party to the reception in evidence of a document, the document would be admitted and the opposing party cannot afterward be heard, except where the law specifically renders the document inadmissible, to complain about its reception in evidence." – Per M. B. Idris, JCA
EFCC – POWERS OF EFCC
By Section 7 of the EFCC Act, the Respondent have the powers to:
(a) cause investigations to be conducted as to whether any person, corporate body or organization has committed any offence under this Act or other law relating to economic and financial crimes;
(b) cause investigations to be conducted into the properties of any person if it appears to the commission that the person’s lifestyle and extent of the properties are not justified by his source of income.
This simply means that the Respondent have the power to investigate financial crimes committed in Nigeria and abroad. This impliedly means that they have the right to act on intelligence, communications, petitions from countries all over the whole world as long as the subject matter borders on financial crimes. – Per M. B. Idris, JCA
BURDEN OF PROOF – BURDEN OF PROOF IN CRIMINAL CASES – WAYS OF PROVING THE GUILT OF AN ACCUSED PERSON
OF AN ACCUSED PERSON
In the case of AKPAKPAN VS. STATE (2021) LPELR – 56220 (SC) (PP. 12 PARAS. A) the Supreme
Court held per Peter Odili, JSC as follows:
In a long line of judicial authorities, it has become well settled that the burden of proof in all criminal cases is upon the prosecution to prove the guilt of the accused person beyond reasonable doubt." In any criminal proceeding, the prosecution has the burden of establishing the guilt of the accused person beyond reasonable doubt. See Section 135 of the Evidence Act 2011. This burden remains on the prosecution and does not shift. Proof beyond reasonable doubt means establishing the guilt of an accused person with compelling and conclusive evidence. It does not mean proof beyond all doubt or all shadow of doubt or proof to the hilt. If the evidence is strong against a person as to leave only a remote probability in the mind of a reasonable man, the case is proved beyond reasonable doubt. The principle of natural justice, equity and good conscience, nemo judex in causa sua, restrains the court from usurping the function of the prosecution under the Nigerian adversarial jurisprudence. That is, the court must be an unbiased umpire and must not descend into the arena of conflict. In order to prove the guilt of an accused person, there are three major ways of doing so.
In the case of OJO VS. STATE (2018) 15 NWLR (PT. 1643) PAGE 527 @ 546 PARAS A – D, the Supreme Court held that the three ways of proving the guilt of an accused person are:
“ (a) through a voluntary confessional statement of the accused person; and/or
(b) through direct credible and reliable eyewitnesses or victims of the offence account depending on the circumstance of the offence or offences; and/or
(c) through circumstantial evidence pointing or focusing on the guilt of the accused person that he was the one or one of the persons who committed the offence or offences charged and by no other person(s) but him.” – Per M. B. Idris, JCA
MONEY LAUNDERING – PROVING MONEY LAUNDERING
In the case of DAUDU VS. FEDERAL REPUBLIC OF NIGERIA (2018) LPELR – 43637 (SC) (PP. 13 – 14, PARAS. B – E), the Apex Court held per Aka’ahs, JSC that:
“Proving money laundering cases is a herculean task because it requires a prior establishment of the predicate offence before the money laundering aspect can be established. To obviate this problem a remedy was introduced by statutorily inferring money laundering from not only the conduct of the defendant but his lifestyle which is similar to the Proceeds of Crime Act 2002 of the UK. Even though Section 36(5) of the 1999 Constitution provides that every person charged with a criminal offence shall be presumed to be innocent until he is proven guilty, the proviso allows for shifting the burden of proof on the defendant. The Section provides thus:
“36(5) Every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty provided that nothing in this Section shall invalidate any law by reason only that the law imposes upon any person the burden of proving particular facts.”
By Section 19(3) of the Money Laundering Act, if an accused person is in possession of pecuniary resources or property which is disproportionate to his known source of income, or he obtained an accretion to his pecuniary resources or property, the burden of giving a satisfactory account of how he made the money or obtained the accretion shifts to him. The prosecution is relieved of the burden of having to prove that the money so found in his account or in his possession is proceeds from illicit traffic in narcotic drugs or psychotropic substances or of any illegal act. To explain the point further, where A is a fixed salary earner and suddenly his account is credited with an amount beyond his income or has property which his legitimate income cannot afford, the burden shifts to him to explain how he got the money with which he bought the property or the legitimate transaction he was engaged in for which the account was credited.” – Per M. B. Idris, JCA
MONEY LAUNDERING – INGREDIENTS OF MONEY LAUNDERING
In the case of SEBORA FARMS EXTENSION LTD VS. FRN & ORS (PP. 45 – 46 PARAS. E), this Court held per Senchi, JCA that:
“For avoidance of doubt, Section 15(1) and 15(2)(a) of the Money Laundering (Prohibition) Act 2011 (as amended) provides as follows:
(1) Money Laundering is prohibited in Nigeria. (2) Any person or body corporate, in or outside Nigeria, who directly or indirectly- (a) conceals or disguises the origin of; (b) … (c) … (d)
… any fund or property, knowingly or reasonably ought to have known that such fund or property is, or forms part of the proceeds of an unlawful act; commits an offence of money laundering under this Act." The ingredients of the offence under the above provision are that:
(i) the defendant directly or indirectly concealed or disguised the origin of funds or property; (ii) the funds or property is or forms part of the proceeds of an unlawful act; (iii) the defendant did so with the knowledge or reasonably ought to have known that the said funds or property is or forms part of the proceeds of an unlawful act. There is a plethora of cases where it has been held that before the offense of money laundering can be proved, the prosecution must prove the existence of a predicate offence.
In the case of AGABA VS. FRN (2021) LPELR – 55667 (CA) (PP. 26 PARAS. A), it was held per Ogbuinya, JCA that:
A predicate offence is "an earlier offence that can be used to enhance sentence levied for a later conviction". See Bryan A. Garner, Black's Law Dictionary, 10th edition (USA, West Publishing Co., 2014) page 1252. It is usually defined in the statutes. The law insists that money laundering offence must be accompanied by predicate offence – an illegal act that yielded the money/funds sought to be laundered as clean money. The MLA, lists an avalanche of the illegal acts that serve as predicate offences. An establishment of the predicate offence is the forerunner and prerequisite to proof of the offence of money laundering. To prove money laundering case requires a prior establishment of the predicate offence before money laundering aspect can be established. See Daudu v. FRN (2018) 10 NWLR (Pt. 1626) 169." – Per M. B. Idris, JCA
EFCC – RESPONSIBILITIES OF EFCC – MONEY LAUNDERING AND CYBERCRIMES
The Respondent is saddled with the responsibility of investigating crimes and corruption matters, including money laundering which is a global scourge that affects countries worldwide, with Nigeria not being an exception. It has been described as the washing of illegitimate money in a bid to make it appear clean or legitimate. It involves the process of transforming the proceeds of crime into ostensibly legitimate money or other assets. The growth in drug trade, human and drug trafficking developments in technology which facilitated the transfer of proceeds of trade in ways hitherto unknown among others brought the attention of government to this menace. The government then started a clampdown on this offence by establishing different policies and also joining various international bodies aimed at combating money laundering.
The Economic and Financial Crimes Commission (EFFC) was established in 2004. One of its primary functions is to investigate allegations of money laundering. It was to strengthen the EFFC to fulfill its mandate, that the 2004 Money Laundering (Prohibition) Act was passed. The Commission is vested with wide powers critical for carrying out this mandate, including the power to place bank accounts under surveillance and carry out other actions designed to assist investigators to identify the owners and locate the proceeds or properties derived from crimes. The Commission also has the power to work alongside law enforcement agencies to curb financial crimes by exchanging intelligence and carrying out investigations together. – Per M. B. Idris, JCA
HEARSAY EVIDENCE – WHETHER INVESTIGATION MATERIALS GARNERED BY INVESTIGATING OFFICER DURING THE COURSE OF INVESTIGATION IS HEARSAY EVIDENCE
…the law is that any statement, both oral and documentary constituting as investigation materials which an investigating officer was able to garner during the course of his investigation cannot be said to be hearsay evidence as long as it is consistent with information he saw, found and compared himself during his own investigation.
In the case of ALLI MOHAMMED VS. STATE (2022) LPELR – 58081 (CA) (PP. 23 – 25 PARAS. C) it was held per Abiru, JCA thus:
“Now, hearsay evidence, in very simple terms, is any statement made out of court but offered in court to prove the truth of the facts asserted in court. It is testimony or documents quoting people who are not present in court, making it difficult to establish its credibility or to test it by cross-examination. It is hearsay if the evidence seeks to establish the truth of a statement and not merely the fact that it was made. When a third party relates a story to another as proof of contents of a statement, such story is hearsay. Hearsay evidence is all evidence which does not derive its value solely from the credit given to the witness himself, but which rests, also, in part, on the veracity and competence of some other person. A piece of evidence is hearsay if it is evidence of the contents of a statement made by a witness who is himself not called to testify.
…It is correct as submitted by Counsel to the Respondent that the evidence of an Investigating Police Officer in a criminal trial is ordinarily not treated as hearsay evidence, but this is where the evidence consists of what he saw, witnessed or discovered in the course of his work as an investigator. AROGUNDADE VS STATE (2009) 6 NWLR (PT 1136) 165, OLAOYE VS STATE (2018) 8 NWLR (PT 1621) 281, ILYASU VS STATE (2021) 1 NWLR (PT 1756) 1, UGOALA VS STATE (2021) 3 NWLR (PT 1763) 263.” The offences for which the Appellant was charged and tried did not start here in Nigeria. The Respondent have the right and power to work with other law enforcement agencies around the world and share intelligence so as to curb the menace of cybercrime and money laundering. It will be a clog in the wheel of the administration of justice if it is now expected and demanded by the courts that the Respondent should call the foreign law enforcement officers all around the world who gathered the intelligence which set the investigation of the Appellant in motion to come down to Nigeria to testify. – Per M. B. Idris, JCA
GUILT OF AN ACCUSED – WAYS OF PROVING THE GUILT OF THE ACCUSED – CIRUCUMSTANTIAL EVIDENCE
I agree with the argument of the learned counsel for the Appellant that the burden of proving the guilt of the Appellant lies heavily on the Respondent, the prosecuting party.
In the Supreme Court case of TOBI VS. STATE (2019) LPELR 46537, it was held per Peter Odili, JSC thus:
It is now very well settled that the principle of criminal law is that the burden of proving a crime rests squarely on the prosecution with a standard of proof that is beyond reasonable doubt which in effect means that every ingredient of the offence must be established to that standard of proof without leaving any reasonable doubt as to the guilt of the accused in thecase.
In the case of OGUNO & ANOR VS. STATE (2013) LPELR – 20623 (SC) (PP. 32 PARAS. B – B) it was held per Galadima JSC that:
The Law is settled that the guilt of an accused person maybe proved by confessional statement circumstantial evidence; and/or direct evidence from eye witness to the commission of the offence. Simply put, in proving the guilt of an accused person, the Prosecution can do so by the confessional statement of the accused which is the best, eye witness testimony and circumstantial evidence.
In the Supreme Court case of OMOREGIE VS. STATE (2017) LPELR – 42466 (SC) (PP. 21 PARAS. B) it was held that per Ogunbiyi, JSC that:
By definition: "a circumstantial evidence is nothing more than evidence of surrounding circumstances which by their nature is capable of establishing a proposition, such as the criminality of an accused with the highest exactitude. It is a combination of evidence of circumstances against an accused when taken together, creates strong conclusions of his guilt with high degree of certainty. It is by application very sparingly used for possible fear of fabrication and casting suspicion on an innocent person." See Oketaolegun v. State 2015 ALL FWLR (Pt.979) page 677. For circumstantial evidence to ground a conviction, it must lead to one irresistible conclusion, that is, the guilt of the accused. Any slight doubt must leave room for an acquittal.
The Apex Court also held in OKETAOLEGUN VS. STATE (2015) LPELR – 24836 (SC) (PP. 22 – 23 PARAS. D) per Galadima, JSC that: Circumstantial evidence is nothing more than evidence of surrounding circumstances which by their nature is capable of establishing a proposition, such as the criminality of an accused person with the highest exactitude: See AKPAN v. THE STATE (supra). It is a combination of evidence of circumstances against an accused when taken together; creates strong conclusions of his guilt with high degree of certainty. It is very often the best evidence, sparingly applied because of possibility of fabrication which may cast suspicion on innocent person. See: MOSES JUA v. THE STATE (2010) 1 – 2 SC. 96; AKPAN ARCHIBONG v. THE STATE (2006) 5 SCNJ 202; NAFIU RABIU v. THE STATE (Supra); IJIOFOR v. STATE (Supra).
The Supreme Court in the case of CHIME IJIOFOR VS. THE STATE (2001) 9 NWLR (PT. 718) 371 AT P. 385, held per Ogebe, JSC that:
“Circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by undesigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial. It may also be noted that there is no yardstick by which any circumstantial evidence can be measured before a conviction can be entered against an accused person charged with the offence for which the circumstantial evidence is the only one available. Each case depends on its own facts but the one test which such evidence must satisfy is that is should lead to the guilt of the accused person and leave no degree to possibility or chance that other persons could have been responsible for the commission of the offence." – Per M. B. Idris, JCA
MONEY LAUNDERING – WHEN BURDEN OF PROOF SHIFTS IN A CASE OF MONEY LAUNDERING
In case of DAUDU VS. FRN (2018) LPELR – 43637 (SC), the Supreme Court held per Aka’ahs, JSC that:
“By Section 19(3) of the Money Laundering Act, if an accused person is in possession of pecuniary resources of property which is disproportionate to his known source of income, or he obtained an accretion to his pecuniary resources or property, the burden of giving a satisfactory account of how he made the money or obtained the accretion shifts to him. The prosecution is relieved of the burden of having to prove that the money so found in his account or in his possession is proceeds from illicit traffic in narcotic drugs or psychotropic substances or of any illegal act. To explain the point further, where A is a fixed salary earner and suddenly his account is credited with an amount beyond his income or has property which his legitimate income cannot afford, the burden shifts to him to explain how he got the money with which he bought the property or the legitimate transaction he was engaged in for which the account was credited.” – Per M. B. Idris, JCA
BURDEN OF PROOF – WHEN BURDEN OF PROOF SHIFTS
Inasmuch as the Respondent is solely saddled with the burden of proving the guilt of the Appellant, once the Respondent has been able to prove that there are some monies in the bank account of the Appellant which do not match his disclosed means of income, the burden shifts to the Appellant to prove how he legitimately came into possession of such funds. – Per M. B. Idris, JCA
CASES CITED
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria 1999 (as amended)
Evidence Act 2011
Money Laundering Act
Cybercrime (Prohibition, Prevention) Act 2015
Administration of Criminal Justice Act 2015
Court of Appeal Fast track Practice Direction 2021
Rules of Professional Conduct 2007
EFCC Establishment Act