IBRAHIM MOHAMMED BASHIR v. FEDERAL REPUBLIC OF NIGERIA
(2016)LCN/8245(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of March, 2016
CA/K/201/2012
RATIO
PRACTICE AND PROCEDURE: WHETHER AN ACCUSED PERSON CAN BE TRIED TWICE OR AGAIN AFTER HE HAS BEEN DISCHARGED AND ACQUITTED OF THE SAME OFFENCE
It is the law that an accused person cannot be tried twice or again after he has been discharged and acquitted of the same offence. See SECTIONS 36(9) OF THE 1999 CFRN (AS AMENDED), 181 CPA, 223(1) CPC, STATE V. MADU & ANOR (1976) NNLR AT 155, RABIU V. STATE (1980) 8-11 SC 130 AT 164, COP V. JOSEPH TOBIN (2009) ALL FWLR (PT.483) 1302 AT 1330 PARAS F-G, FIDELIS UBANATU V. COP (2000) FWLR (Pt.1) 138 AT 158 PARA B. per. UWANI MUSA ABBA AJI, J.C.A.
CRIMINAL LAW: WHETHER THE PROSECUTION HAS THE DUTY TO PROVE THE ESSENTIAL ELEMENTS OF THE OFFENCE CHARGED IN CRIMINAL TRIALS
It is well-known in criminal trials that the prosecution has the duty to prove the essential elements of the offence charged. See Sections 138 (1) of the Evidence Act, 2011, 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); NJOVENS v STATE (1973) NWLR 331; AMEH v. STATE (1923) 7 SC 27; MILLER v. MINISTER OF PENSIONS (1947) 2 ALL ER 372; KALU V. STATE (1988) 4 NWLR (PT 90) 503; AYO v. STATE (2006) 6 WRN 134; SAM v. COP (2009) ALL FWLR (PT 450) 760, 169, It is without doubt that the Respondent has proved abundantly the two elements of the offence as charged under Section 16(b) of the Money Laundering (Prohibition) Act, 2004, against the Appellant. Where all the ingredients of an offence have been clearly established and proved by the prosecution, then the offence is proved beyond reasonable doubt. See ALABI V. STATE (1993) 7 NWLR (PT.307) 511 AT 523, AJAYI v. STATE (2013) 2-3 MJSC (PT.1) 59. per. UWANI MUSA ABBA AJI, J.C.A.
JUSTICES
UWANI MUSA ABBA-AJI Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
Between
IBRAHIM MOHAMMED BASHIR Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment):? This is an appeal against the judgment of the Federal High Court of justice, Kaduna State, holden at Kaduna in Case No. FHC/KD/24C/2008, delivered by Justice M.L. Shuaibu on 16/5/2008, wherein the Appellant was convicted as charged and sentenced to 12 months on counts 1 and 2 and to forfeit N300,000,000.00 (Three hundred million naira) being fine.
The charge against the Appellant at pages 1-2 of the records dated 8/4/2008 and filed on 9/4/2008 reads as follows:
CHARGE
That you Yusuf Nuhu, Ibrahim Mohammed Bashir, one HESHGOOD (AKA BUCKKY) (Now at Large) and one MASAUD (Now at Large) on or about the 5th of March 2007 in Lagos within the jurisdiction of the Federal High Court conspired among yourselves to conceal the genuine origin and ownership of the sum of N300,000,000.00 (Three Hundred Million Naira) only which sum formed part of the funds illegally transferred from an Account in United Bank for Africa Plc and which sum you knew to be the proceeds of a crime or illegal Ad and thereby committed an offence contrary to Section 17(a) of the Money
Laundering (Prohibition) Act 2004 and punishable under Section 14(1) of the same Act.
COUNT TWO
That you Yusuf Nuhu and Ibrahim Mohammed Bashir on or about the 5th of March 2007 in Lagos within the Jurisdiction of the Federal High Court collaborated with one HESHGOOD (AM BUCKKY) (Now at Large) and one MASAUD (Now at Large) to conceal the genuine origin and ownership of the sum of N300,000,000.00 (Three Hundred Million Nain) only which sum formed part of the funds illegally transferred from and Account in United Bank for Africa Plc and which sum you knew to be the proceeds of a crime or illegal Act and thereby committed an offence contrary Section 14(1)(b) of the Money Laundering (Prohibition) Act 2004 and punishable under Section 14(1) of the same Act.
COUNT THREE
That you Ibrahim Mohammed Bashir on or about the 5th of March 2007 in Lagos within the jurisdiction of the Federal High Court did an illegal ad to wit: had possession of the sum of N300,000,000.00 (Three Hundred Million Naira) only which sum formed part of the funds illegally transferred from an Account in United Bank for Africa Plc and which
sum you knew to be the proceeds of a crime or illegal Act and thereby committed an offence contrary Section 16(b) of the Money Laundering (Prohibition) Act 2004 and punishable under Section 16 of the same Act.
The facts are that on the 6th day of March 2007, the Economic and Financial Crimes Commission, (“the EFCC”), received a written petition from the United Bank for Africa Plc, wherein the bank complained that, three of its Manager’s cheques totalling the sum of N409,728,160.00 (Four hundred and nine million, seven hundred and twenty eight thousand, one hundred and sixty Naira) and which cheques, which were genuinely issued in favour of the Federal High Court, UBA Global Market and UBA Transcorp respectively were fraudulently liquidated or paid into some other customer’s accounts at the Karshi’s branch of the bank. The Respondent specifically stated that, the Manager’s cheque with a monetary value of N311,000,000.00 (Three hundred and eleven million Naira) which was genuinely issued in favour of the Federal High Court was fraudulently liquidated into the account of a company called Ezeco Engineering Company and from which company’s account the
sum of N300,000,000.00 (Three hundred million Naira) was subsequently transferred into the Appellant’s account with the bank on the 5th day of March, 2007. It is on the basis of the transfer of the said sum of N300,000,000.00 (Three hundred million Naira) from the said company’s account into the Appellant’s account, that, the Appellant and one Yusuf Nuhu was arraigned before the lower Court in respect of the three count charge as hereinbefore stated. The said Yusuf Nuhu was discharged on the 2 count 1 and 2 of the charge vide a no case submission. The Appellant was convicted and sentenced by the trial Court on all the charges.
The Appellant being dissatisfied with the said conviction and sentence appealed vide a Notice of Appeal dated and filed on 19/7/2012, with 3 Grounds of appeal reproduced without their particulars:
GROUNDS OF APPEAL:
GROUND ONE:
The learned trial Judge erred in law when he convicted and sentenced the Appellant in respect of counts one and two in his final
judgment of the 16th day of May 2012 when his Lordship had previously discharged the Appellant and his co-accused, one Yusuf Nuhu, in respect of the self-same counts one and two vide the lower Court’s Ruling (judgment) that was delivered on the 14th day of December 2010,
GROUND TWO:
The lower Court erred in law when it found the Appellant guilty of the offence of being in possession of the sum of N300,000,000.00 (Three hundred million Naira) which the Appellant knew to be proceeds of a crime or of an illegal act when there was no scintilla of evidence before the Court, to show that, the Appellant actually knew that the said sum of money was the proceeds of a crime or of an illegal act.
GROUND THREE:
The lower Court erred in law when it ordered tie Appellant to forfeit the said sum of N300,000,000.00 (Three hundred million Naira) as a fine when the Court knew very well from the abundant evidence before it, that the sum of money does not belong
to the Appellant nor was the money in question was still in the possession of the Appellant as the 16th day of May 2012 when the said order of forfeiture was made by the Court.
In accordance with the Rules of this Court, the Appellant filed his Brief of argument dated 27/2/2015 but deemed properly filed on 3/3/2015, settled by Chris Ubogu, Esq, wherein he formulated 3 issues for the determination of the appeal to wit:-
1. Whether the learned trial judge was right to have found the Appellant guilty and then proceeded to sentence him to twelve (12) calendar months imprisonment without an option of fine in the Court’s final judgment that was delivered on the 16th day of May 2012 in respect of counts one and two in the charge with which the Appellant was arraigned before the lower Court after the same Court had previously discharged the Appellant in respect of the selfsame counts one and two in its ruling that was delivered on the 14th day of December 2010?
2. Whether the lower Court was right to have found the Appellant guilty of the offence stated in count three of the charge, which is to the
effect that, the Appellant had possession of the sum of N300,000,000.00 (Three hundred million Naira) and which sum of money the Appellant knew to be the proceeds of a crime or illegal act, when there is no evidence on record, to show that, the Appellant either had possession of the said sum of money or knew or had reason to know, that, the said sum of money was the proceeds of a crime or illegal act?
3. Whether the lower Court was right to have ordered the Appellant to forfeit the sum of N300,000,000.00 (Three hundred million Naira) as a fine as at the 16th day of May 2012 when the Court delivered its final judgment in the case, when there is unchallenged and uncontroverted evidence before the Court, that, the Appellant is not the owner of the said sum of money which was transferred into his account on the 5th day of March 2007 and coupled with the fact that, as at the 16th day of May 2012, the said sum of N300,000,000.00 (three hundred million Naira) was no longer in the Appellant’s account, the same having been removed from the Appellant’s account by the bank since on the 6th March 2007?
?The Respondent
filed its Brief of Argument dated 14/5/2015 and filed on 15/5/2015, settled by C.O. Ugwu, Esq, wherein he formulated one issue for the Respondent for the determination of this appeal thus:
1. Whether the prosecution proved Count three of the Charge as to warrant the conviction of the Appellant on the said count? (Appellant’s issue two).
The Respondent also cross appealed.
At the hearing of the appeal on 2/2/2016, the Counsel to the Appellant adopted his Brief of argument and prayed this Court to allow the appeal and set aside the conviction and sentence of the Appellant.
The Counsel to the Respondent/Cross Appellant adopted his Brief and urged the Court to dismiss the appeal and sentence the Appellant under the relevant law.
I shall consider this appeal on 2 issues as retouched thus:
1. Whether the Appellant can be retried on counts 1 and 2 after he was discharged on same in a no case to answer by the trial Court.
2. Whether the prosecution proved Count three of the Charge as to warrant the conviction of the Appellant on the said count and to order the forfeiture of
N300,000,000.00,
ISSUE ONE:
Whether the Appellant can be retried on counts 1 and 2 after he was discharged on same in a no case to answer by the trial Court.
It is submitted that it is legally unjustifiable for the trial Court to convict the Appellant on counts 1 and 2 in its judgment of 16/5/2012 when it had earlier discharged him on same counts 1 and 2 in its Ruling of 14/12/2010, since the decision discharging him of the said counts are valid and subsisting same having not be appealed against. The trial Court is therefore functus officio in respect of its Ruling delivered on 14/12/2010 and cannot revisit same. He relied on NWAJIOBI & ORS vs. ABA SOUTH LOCAL GOVERNMENT & ANOR (2009) ALL FWLR (PT. 469) 518 AT 533 PARAS A-D. That having been discharged earlier on counts 1 and 2 on a no case to answer, it was wrong for the trial Court to have retried the Appellant as it did. He cited COMMISSIONER OF POLICE VS. JOSEPH TOBIN (2009) ALL FWLR (PT.483) 1302 AT 1330 PARAS F-G, FIDELIS UBANATU VS. COMMISSIONER OF POLICE (2000) FWLR (PT.1) 138 AT 158 PARA
B.
The learned Counsel to the Appellant urges this court to hold that it was wrong for the trial Court to have found the Appellant guilty and sentence him to 12 months imprisonment without option of fine in the Court’s final judgment in respect of counts 1 and 2.
In responding to this issue, the learned Counsel to the Respondent also agreed that it was wrong for the trial Court to do that.
It is on record that at pages 83-84, especially from the last paragraph, the trial court in its Ruling of 14/12/2010 held that:
“… the evidence respecting the first two counts of charge against the 1st and 2nd Accused persons are inextricably woven around them and since a prima facie case has not been made in respect of the said counts one and two, the Accused persons are entitled to discharge, Consequently, the 2nd Accused is hereby called upon to enter his defence as regards to the third count of charge white they are discharged on counts one and two of the charge.”
?Notwithstanding, the trial Court in the last paragraph of page 97 of its final judgment delivered on the 16/5/2012 in sentencing the Appellant held:
“The convict being a first offender and having been remorseful is sentenced to twelve (12) calendar months on count one and two…The sentence shall run concurrently with effect from today, the 16th day of May 2012.”
It is unfortunate that the Appellant had to stand trial all over again even after he was discharged by the same Court on counts 1 and 2 and eventually sentenced on same. It is the law that an accused person cannot be tried twice or again after he has been discharged and acquitted of the same offence. See SECTIONS 36(9) OF THE 1999 CFRN (AS AMENDED), 181 CPA, 223(1) CPC, STATE V. MADU & ANOR (1976) NNLR AT 155, RABIU V. STATE (1980) 8-11 SC 130 AT 164, COP V. JOSEPH TOBIN (2009) ALL FWLR (PT.483) 1302 AT 1330 PARAS F-G, FIDELIS UBANATU V. COP (2000) FWLR (Pt.1) 138 AT 158 PARA B. since counts 1 and 2 are the same for which he was discharged by the trial Court, it was wrong for the same trial Court to sentence the Appellant for 12 months after it had earlier discharged him on those same counts. The Respondent in this appeal who is a minister of justice also agreed to this when in the last paragraph of page 3 of
his brief, he submitted thus:
“My Lords, with greatest respect, the Respondent/Cross-Appellant totally agrees that the lower Court should not have convicted the Appellant in respect of Counts One and Two of the charge having discharged him earlier in the Ruling on the said No Case Submission delivered on the 14th day of December 2010. As such we shall not be joining issues with the Appellant in respect of issue one as argued in his brief.”
I must observe here that the evil the plea of autre fois acquit seeks or intends to prevent is double trial and double conviction and not double punishment. Thus, the Appellant having been discharged cannot be convicted again on those same counts. I therefore resolve this issue in favour of the Appellant and set aside his conviction for 12 calendar Months pronounced by the trial court on 16/5/2012.
ISSUE TWO:
Whether the prosecution proved Count three of the Charge as to warrant the conviction of the Appellant on the said count and to order the forfeiture of N300,000,000.00.
It is submitted by
the Appellant that the ingredients for securing conviction under count 3, that is, Section 16 (b) of the Money Laundering (Prohibition) Act, 2004 are:- (a) That the Appellant either acquired or used or had possession of the said sum of N300,000,000.00 (Three hundred million Naira); and (b) That the Appellant knew that the said sum of N300,000,000.00 (Three hundred million Naira) either in whole or in part directly or indirectly represents another person’s proceeds of a criminal conduct. It is submitted that the Respondent failed woefully to prove these elements and so the Appellant is entitled to a discharge. He settled that it is the law that he who asserts must prove. He relied on Sections 131, 135(1),(2) of the Evidence Act, 2011, THE STATE VS. FATAI AZEEZ & ORS (2008) ALL FWLR (PT. 424) 1423 AT 1450 PARA F, EME ORJI VS. THE STATE (2008) ALL FWLR (PT. 422) 1093 AT 1107 – 1108 PARAS H – A, SEGUN AJIBADE VS. THE STATE (2012) ALL FWLR (PT. 610) 1381 AT 1391 PARAS A-G. He stated that in the instant appeal, the Respondent could not adduce any evidence that the Appellant knew or had reason to know that the said sum which was transferred into the Appellant’s
account represents another person’s proceeds of a criminal conduct. Again, that it is in evidence that the said sum was transferred into the Appellants account by the bank itself on 5/3/2007 at the instance of Ezeco Engineering Co Ltd and same debited by the bank. That in the absence of this proof, the Appellant was entitled to a doubt in his favour. He relied on KELECHI NWAOBASI VS. THE STATE (2008) ALL FWLR (PT. 446) 1974 AT 1996 PARA D AT PAGES 1991 – 11992 PARAS H – B. It is submitted that the only admissible evidence is that given by the Appellant who stated in his evidence on how and why the said sum was transferred into his account. That it was for the purpose of Bureau de Change transaction which the Appellant was an operator. It is contended that the said evidence was never challenged.
Further, that it was never proved that the Appellant ever had possession of the said sum as same was transferred into his account and debited by UBA PLC. Thus, it is UBA PLC that had custody of the said sum as in banker-customer relationship. He quoted PURIFICATION TECHNIQUE (NIG) LTD VS. A.G. LAGOS STATE & ORS (2004) ALL FWLR (PT. 211). He submitted therefore
that it was wrong for the trial Court to hold that the Appellant was in possession of the said sum and which finding is perverse and ought to be set aside. He relied on CHIEF OGOLO & ORS VS. CHIEF FUBARA (2003) FWLR (PT.169) 1285 AT 1312-1313 PARAS H-B UDENGWU VS. UZUEGBU & ORS (2003) FWLR (PT.179) 1173 AT 1182 ? 1183 PARAS H-C.
It is contended that the order of forfeiture of the sum of N300,000,000.00 (Three hundred million Naira) by the trial Court was wrong since the said amount does not belong to the Appellant nor was in his account as at the 16/5/2012, the date of judgment. Similarly, that the said order cannot be carried out by the Appellant nor enforced against him by the Respondent. Thus, that a Court should not make an order in vain or that cannot be enforced. He relied on IGBO PETER VS. ARC. GEORGE IKE OKOYE & ANR (2002) FWLR (PT. 110) 1864 AT 1881 PARAS E-F, F.G.N. & ANOR VS. ADAMS OSHIOMHOLE & ANOR (2004) ALL FWLR (PT. 209) 972 AT 986 PARAS A-C, ANDU MAKINDE & ORS VS. DAWUDA AKINWALE & ORS (1995) 6 SCNJ 65 AT 70 LINES 39-41. He urged this Court to allow the appeal and quash the conviction and sentence of the
Appellant.
?The Respondent on the other hand has argued that the Appellant was rightly charged under Section 16 (b) of the Money Laundering (Prohibition) Act, 2004. He maintained that the 2 elements of the offence which include:- (a) That the Appellant either acquired or used or had possession of the said sum of N300,000,000.00 (Three hundred million Naira); and (b) That the Appellant knew that the said sum of N300,000,000.00 (Three hundred million Naira) either in whole or in part directly or indirectly represents another person’s proceeds of a criminal conduct, were proved against the Appellant. On the 1st element, he stated that it was proved that the Appellant was in possession of the said sum through the evidence of PW1, PW2 and Exhibits B, D & D1; and made efforts to withdraw therefrom. On the 2nd element, it is argued that the Appellant knew or had knowledge that the said sum represents another person’s proceeds of a criminal conduct. That by the amount involved, the Appellant as a licensed BDC ought to have been cautious and investigative as prescribed under Sections 6(1) and 3(7) of the Money Laundering (Prohibition) Act, 2004. It is therefore
concluded that the trial Court was right to hold that the Appellant knew that the money transferred into his account was the proceeds of a crime. He urged this Court to affirm the trial Court’s judgment.
For clarity and comprehensiveness, the particulars of Count 3 states as follows:
“That you Ibrahim Mohammed Bashir on or about the 5th of March 2007 in Lagos within the jurisdiction of the Federal High Court did an illegal act to wit: had possession of the sum of N300,000,000.00 (Three Hundred Million Naira) only which sum formed part of the funds illegally transferred from an Account in United Bank for Africa Plc and which sum you knew to be the proceeds of a crime or illegal Act and thereby committed an offence contrary Section 16(b) of the Money Laundering (prohibition) Act 2004 and punishable under Section 16 of the same Act.”
Section 16 (b) of the Money Laundering (prohibition) Act, 2004, under which the Appellant was charged provides inter alia:
Section 16(b):
“Any person-
(b) Knowing that any property either in whole or in part directly or indirectly represents
another person’s proceeds of a criminal conduct, acquires or uses that property or has possession of it, commits an offence under this Act and is liable on conviction to imprisonment for a term of not less than 5 years or to a fine equivalent to 5 time the value of the proceeds of the criminal conduct or to both such imprisonment and fine.”
Deducible from the above, the onus of proof is on the Respondent to prove the elements of the offence as stated under Section 16(b) of the Money Laundering (Prohibition) Act, 2004, which include:
1. That the Appellant either acquired or used or had possession of the said sum of N300,000,000.00 (Three Hundred Million Naira).
2. That the Appellant knew that the sum of N300,000,000.00 (Three Hundred Million Naira) either in whole or in part directly or indirectly represents another person’s proceeds of a criminal conduct.
On the first element, the Appellant by Exhibits E & E1 admitted and confessed that exactly on 5/3/2007, the sum of N300,000,000.00 (Three Hundred Million Naira) was transferred into his UBA account situate in Karshi branch, Aba in Abia State. This is abundantly
evidenced by Exhibit B. It is in evidence that the Appellant had aside being in possession of the said sum, exercised control over the said sum of N300,000,000.00 (Three Hundred Million Naira). By Exhibits D & D1, the Appellant issued two cheques of N64.5 Million and N500,000.00 respectively. Also, on 9/3/2007, he withdrew money twice from the said sum of N300,000,000.00 (Three Hundred Million Naira) in the said UBA account via ATM. Corroborative of this possession is the evidence of PW1 who testified at page 60 lines 20-21 that because of the lodgement of the said sum into the Appellant’s UBA account, where he was employed, “we blocked those accounts to prevent fraudulent beneficiaries from benefiting from those -monies.” Further, PW2, a staff with EFCC at page 65 lines 11-13 stated that:
“We requested the Bank to give us the relevant statement of accounts in which the money were lodged in and it happened to be the 2nd Accused Accounts.”
Again, PW3, also a staff with EFCC at page 69 gave evidence as follows from line 4:
“On 8/3/2007, the Bank officials called me to say that they have complied with my advice and
this resulted to a lien been placed on the account of the 2nd Accused person…”
Can it therefore not be safe to conclude that the Appellant had “had possession of the said sum of N300,000,000.00 (Three Hundred Million Naira)?” The authority in PURIFICATION TECHNIQUE (NIG) LTD vs. A.G. LAGOS STATE & ORS (2004) ALL FWLR (PT. 211) 1479 is of no moment here and grossly inapplicable in this appeal to prove that the Appellant was not in possession of the said sum of N300,000,000.00 (Three Hundred Million Naira).
On the 2nd element of the offence, did the Appellant know that the said sum of N300,000,000.00 (Three Hundred Million Naira) was a proceed of criminal conduct? By the Appellant’s later confession/statement in Exhibit E1, he emphatically explained the circumstances of the transaction which he admitted even to him was suspicion and would have been proceeds of criminal conduct. In his statement to EFCC dated 3/5/2007 herein called Exhibit E, the Appellant stated that the N300m was paid into his UBA account “by my two customers that I knew for a long time who normally come to me to buy foreign exchange. They came to buy $2.3m so
they transferred the N300m into my account…I have never knew them except with this company except their name Yusuf or Douglas.” In his later stated to EFCC dated 7/5/2007 referred herein as Exhibit E1, he confessed amongst others that “the person that gave me this transaction of N300m is Masaudu and he is the only person I knew I tried shielding him but I cannot but to tell the whole truth, he Masaudu was the one that confronted me…that he has a lot of money that his customers are bringing for him to buy dollars for them but part of it will be sent to me so that I can buy part of money for him…Why I lied was the way (I) our people behave because some will think you want to use officers to cheat them or chase them away that is why I was shielding him but now I don’t have a choice but to mention him because that is what will save me.” It is therefore incontestable that the Appellant did not only know that the said N300m was a proceed of criminal conduct but made efforts to disguise and conceal the origin of the N300m, the ownership and its movement purportedly from the unknown customers to the beneficiaries. It has been shown that
the Appellant who was drowning had tried to shield some people from the transaction which he knew to be criminal as confessed by him in Exhibit E1. It was this concealment that made him to call many names as Yusuf, Douglas and Masaudu even when the chips were down. He equally accepted that he had never known those individuals except with their company names, yet he went ahead into the shady transaction.
It is well-known in criminal trials that the prosecution has the duty to prove the essential elements of the offence charged. See Sections 138 (1) of the Evidence Act, 2011, 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); NJOVENS v STATE (1973) NWLR 331; AMEH v. STATE (1923) 7 SC 27; MILLER v. MINISTER OF PENSIONS (1947) 2 ALL ER 372; KALU V. STATE (1988) 4 NWLR (PT 90) 503; AYO v. STATE (2006) 6 WRN 134; SAM v. COP (2009) ALL FWLR (PT 450) 760, 169, It is without doubt that the Respondent has proved abundantly the two elements of the offence as charged under Section 16(b) of the Money Laundering (Prohibition) Act, 2004, against the Appellant. Where all the ingredients of an offence have been clearly established and
proved by the prosecution, then the offence is proved beyond reasonable doubt. See ALABI V. STATE (1993) 7 NWLR (PT.307) 511 AT 523, AJAYI v. STATE (2013) 2-3 MJSC (PT.1) 59.
I hold therefore that the Respondent has proved the offence against the Appellant and his guilt established under Count 3 of the charge. This issue is accordingly resolved against the Appellant. The main appeal is dismissed.
THE CROSS-APPEAL:
The Cross-Appellant cross-appealed vide a Notice of Cross-Appeal dated 21/2/2013 and filed on 22/2/2013, wherein he formulated 2 Grounds of Appeal thus:
GROUNDS OF APPEAL:
GROUND ONE:
The learned trial Judge erred in law in ordering the Appellant to pay the sum of N300,000,000.00 (Three hundred million Naira) as a fine when the charge for which the Appellant was tried and convicted was fir possession of the same amount contrary to Section 16 of the Money Laundering (prohibition Act) 2004.
GROUND TWO:
The decision of the trial court was unreasonable having regard to the evidence of prosecution adduced at the trial.
The Cross-Appellant filed its Brief of Argument dated 14/5/2015 and filed on 15/5/2015, settled by C.O. Ugwu, Esq, wherein he formulated one issue for the determination of the cross-appeal thus:
Whether in sentencing the Appellant on Count three of the Charge, the trial lower court was in compliance with Section 16 of the money laundering (Prohibition) Act, 2004 . (From Cross-Appellant’s Ground of Appeal).
Consequently, the Cross-Respondent filed his Reply Brief to the Cross-Appellant’s Brief dated 14/10/2015 and deemed filed on 15/10/2015. He formulated a lone issue in his Reply to the cross-appeal thus:
Whether the lower court had the power to enforce the provision of Section 16(b) of the Money Laundering (Prohibition) Act 2004 and to also impose the punishment prescribed in Section 16 of the money Laundering (Prohibition) Act 2004 against the Appellant as at the 16th day of May 2012 when the court
delivered its final judgment in this case?
At the hearing, the Cross-Appellant adopted his brief and urged this Court to allow the cross-appeal while the Cross-Respondent adopted his brief and asked this Court to dismiss the cross-appeal. I shall therefore consider the cross appeal on the issue formulated by the Cross-Appellant:
Whether in sentencing the Appellant on Count three of the Charge, the trial lower Court was in compliance with Section 16 of the money laundering (Prohibition) Act,?2004.
It is submitted by the learned Counsel to the Cross-Appellant that the trial Court was wrong in sentencing the Cross-Respondent as prescribed under Section 16 of the Money Laundering (Prohibition) Act, 2004. Also, that it was not right to order the forfeiture of the said sum as fine despite evidence that the money was recovered by UBA PLC. It is submitted that a fine is a punishment for some infraction of the law.
It is urged upon this Court to therefore impose the punishment on the Appellant as prescribed by Section 16 of the Money Laundering (Prohibition) Act, 2004.
The Cross-Respondent’s learned Counsel
however contended that when the trial Court gave its judgement on 16/5/2012, it could no longer enforce Section 16 of the Money Laundering (Prohibition) Act, 2004, because the said Section 16 of the Money Laundering (Prohibition) Act, 2004, was repealed and ceased to be an existing taw in Nigeria pursuant to the enactment of Money Laundering (prohibition) Act, 2011. Thus, that the lower Court has no power to enforce the provision of a repealed law. He urged this Court to dismiss the cross-appeal.
Section 16 of the Money Laundering (prohibition) Act, 2004, provides as follows:
“Any person who… commits an offence under this Act and is liable on conviction to imprisonment for a term of not less than 5 years or to a fine equivalent to 5 time the value of the proceeds of the criminal conduct or to both such imprisonment and fine.”
It is clear that the provision of Section 16 of the Money Laundering (Prohibition) Act, 2004, is mandatory and does not admit of the trial Judge’s discretion. . In OJU L. G. v. INEC (2007) 14 NWLR PT. 1054) 242 AT 263 – 264, PARAS D-A, it was held that where an Act makes a mandatory stipulation,
the operators of the Act must comply strictly with such provisions and the compliance must be exact. The Apex Court per Tobi, JSC, settled this when it held in C.C.C.T.C.S. LTD. & ORS. v. EKPO (2009) 6 NWLR (PT.1083) 362 S.C:
“A Court of law cannot ignore provisions of a statute which are mandatory or obligatory and to the line of justice in the event that the Statute has not done justice. Courts of law can only do so in the absence of a mandatory or obligatory provision of a statute. In other words, where the provisions of a statute are mandatory or obligatory, Courts of law cannot legitimately brush the provisions aside just because it wants to do justice in the matter.
That will be adulterating the provisions of the Statute and that is not my function; the judge and I am. I must say that I will be doing justice only to the appellants if I interpret Section 22 and 26 of the Land Use Act in the way he has urged, But that wilt certainly be unjust to tie respondent. He too, like the appellants, need justice.
As the independent umpire that I am, I am bound to do justice in the case
before me. And that justice is to construe Section 22 and 26 in their ordinary meaning, and I so construe the provisions against the appellants.”
A fine is a pecuniary penalty imposed by a competent Court upon a person convicted of a crime. Having established that the said N300M was not in the Appellant’s account and that the said Appellant admitted that it was not his money, it was wrong for such amount which was not the Appellant’s to be a subject of forfeiture against the Appellant. The forfeiture, if any, must be against the property or money owned by the Appellant himself and not money that is not his. At page 722 of the same Black’s Law Dictionary, the word “forfeiture” is defined as:- “The divesture of property without compensation. The loss of a right privilege or property because of a crime, breach of obligation, or neglect of duty in which case title is instantaneously transferred to another. See also AIRTEL NETWORKS LTD V. GEORGE & ORS (2014) LPELR- 22951 (CA). Again, the Supreme Court in A-G. BENDEL STATE V. AGBOFODOH (1999) 2 NWLR (PT. 592) 476 defined it thus:
“While the word “forfeiture” was not defined in
Section 7 of the Interpretation Act, the said word is defined in Words and Phrases, Legally Defined, 3rd edition by Saunders, as “something lost by commission of a crime, – something paid for the expatiation of the crime, a fine, a mullet”. In Black’ Law Dictionary, 6th edition, “forfeiture” is defined as “loss of property or money because of breach of a legal obligation” and the word ‘forfeit” in the same dictionary is defined as “to incur a penalty, to become liable to the payment of a sum of money, as a consequence of a certain act. In the Dictionary of English Law by Earl Jowitt, “forfeiture” is defined as where a person loses some property right, privilege or benefit in consequence of having done or-omitted to do a certain act. (The italics is for emphasis only), I have no doubt therefore that the word “forfeiture” used in Section
2(1)(a) of the Decree comes within the above definitions.”
?The learned Counsel to the Appellant had argued vainly without any authority that the Appellant was convicted and sentenced under the repealed Money Laundering (Prohibition) Act, 2004.
Nevertheless, he conceded that same was replaced with Money Laundering (Prohibition) Act, 2011. He never said and demonstrated to this Court whether the said Section 16(b) of the Money Laundering (Prohibition) Act, 2011, has been abolished or the punishment commuted.
On the effect of a repealed Act, Section 6(1) of the Interpretation Act Cap 192 Laws of the Federation of Nigeria explicitly states that:-
“S.6(1) The repeal of an enactment shall not:-
(a) ……………………………………….
(b) affect previous operation of the enactment or anything duly done or suffered under the enactment,
(c) affect any right, privilege, obligation, or liability accrued or incurred under the enactment
(d) affect investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability… and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and such penalty may be imposed as if the enactment had not been repealed.
See also OLUTOLA
V. UNILORIN (2004) l8 NWLR (PT.705) 416 S.C. Although the Money Laundering (Prohibition) Act, 2004, has been repealed, it has been replaced by the Money Laundering (Prohibition) Act, 2011. Thus, though repealed, it was only made impotent and moribund. Its future activities are affected and cannot be properly jettisoned since there is in force the Money Laundering (Prohibition) Act, 2011
This issue is resolved in favour of the Cross-Appellant. In truth and in flagrant non-compliance, the trial Court was not in compliance with Section 16 of the Money Laundering (Prohibition) Act, 2004.
However, because the Appellant was wrongly convicted and sentenced by the trial Court as held in Issue 1 above for Counts 1 and 2 which he was hitherto discharged and has served 12 Months imprisonment, the said 12 Months shall be deducted from the mandatory 5 years he shall be in prison as found guilty under Section 16(b) of the Money Laundering (Prohibition) Act, 2004. The cross-appeal succeeds. The Appellant shall be arrested to complete his remaining 4 years in prison.
IBRAHIM SHATA BDLIYA, J.C.A.: Having read in draft, before
now, the judgment just delivered by my learned brother, Uwani Musa Abba Aji, J.C.A, I agree with the reasonings and conclusions in arriving at the decision that the main appeal be dismissed, and the cross-appeal be allowed. I abide by the order made to arrest the appellant to be imprisoned to complete the remaining 4 years imprisonment.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother UWANI MUSA ABBA AJI, JCA and entirely agree with my learned brother’s reasonings and conclusions, with nothing further to add.
Appearances
CHRIS UBOGU ESQ.For Appellant
AND
C.O. UGWU ESQ.For Respondent
