CHIEF PATRICK T. CHIDOLUE V. ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC)
(2011)LCN/4366(CA)
In The Court of Appeal of Nigeria
On Monday, the 7th day of March, 2011
CA/A/122/2010
RATIO
CONFESSION: STATUTORY PROVISION ON THE DEFINITION OF THE WORD ” CONFESSION”
Section 27 (1) of the Evidence Act defines confession as follows:- “A confession is an admission made at anytime by a person charged with a crime, stating or suggesting the inference that he committed that crime.” See AKPAN v. STATE (2001) 7 SC (Pt.1) 124; DANIELS v. STATE (1991) 1 NWLR (PT.212) 715; MILLA VS THE STATE (1985) 3 NWLR (PT.11) 190. PER PAUL ADAMU GALINJE, J.C.A.
COMPOUNDING CRIME : CONDITION FOR COMPOUNDING ANY OFFENCE PUNISHABLE UNDER THE ECONOMIC AND FINANCIAL CRIMES COMMISSION (ESTABLISHMENT) ACT, 2004
I need only to add that where a person is charged to court of competent jurisdiction for any offence under the Act, the offence can only be compounded by the Defendant with the leave of the Court, But where as in this ease, the Accused was not arraigned before any Court of law, the Defendant can act and avail itself with the provisions of section 14 (2) supra and compound any offence under the act without any Courts intervention’s Section 14 (2) of the Act provides as follows:- “subject to the provisions of Section 174 of the Constitution of the Federal Republic of Nigeria, 1999 (which relates to the power of the Attorney General of the Federation to institute, continue, takeover or discontinue criminal Proceedings against any person in Court of law), the commission may compound any offence punishable under this Act by accenting such sums of money as been convicted of that offence.” (underlining is mine) PER PAUL ADAMU GALINJE, J.C.A.
COMPOUNDING CRIME : DEFINITION OF COMPOUNDING CRIME AND ELEMENTS THAT MUST THAT MUST BE PRESENT BEFORE AN OFFENCE CAN BE COMPOUNDED
The Black’s Law Dictionary, 6th Edition defines compounding crime in the following words:-
“Compounding crime consists of the receipt of some property or other consideration in return for an agreement not to prosecute or inform on one who has committed a crime.” The same dictionary gives three elements at common law and under the typical compounding statute that must be present before an offence can be compounded. These elements are:- 1. An agreement not to Prosecute. 2. Knowledge of the actual commission of crime 3. Receipt of some consideration. PER PAUL ADAMU GALINJE, J.C.A.
JUSTICES:
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
Between
CHIEF PATRICK T. CHIDOLUE – Appellant(s)
AND
ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC) – Respondent(s)
PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment): By an originating summons dated 17th October, 2008, the Appellant herein sought for the following reliefs:-
1. A declaration that the Defendant’s forfeiture of the Plaintiff Standard chartered Bank cheque No. 00052370 for the sum of N100,000.000 (One Hundred Million) only is a violation of the Plaintiffs right to property guaranteed under section 4 of the Constitution of the Federal Republic of Nigeria, 1999 and is accordingly unconstitutional and void.
2. An order of mandatory injunction directing the Defendant to release forthwith to the Plaintiff his Standard Chartered Bank Cheque No.00052370 for the sum of N100,000.000 (One Hundred Million) only which the Defendant forfeited from the Plaintiff without lawful authority.
3. An order of perpetual injunction restraining the Defendant by themselves, their agents/servants or privies from forfeiting the Plaintiffs property in anyway violating the Plaintiffs rights to property guaranteed under Section 44 of the Constitution of the Federal Republic of Nigeria, 1999.
In addition to the reliefs sought as set out above, the Appellant submitted the following questions for determination of the case:-
1. Whether the Economic and Financial Crimes commission (Establishment Etc) Act, cap E1 LFN 2004 which established the Defendant conferred on it power to compulsorily take possession or forfeit the property of a citizen of Nigeria without a Court Order first sought and obtained.
2. If the answer to the above is negative whether the Defendant is bound to return to the Plaintiff the Standard Chartered Bank Cheque No. 00052370 for the sum of N100,000.000 (One Hundred Million) only which the Defendant compulsorily forfeited from the Plaintiff.
This originating summons which was accompanied by a 17 paragraphs affidavit was heard by the Federal High Court Abuja and in a reserved and considered judgment which was delivered on the 11th of February, 2010; the lower court dismissed the Appellant’s claim on the ground that the claims were not proved.
Being dissatisfied and aggrieved with the judgment aforesaid, the Appellant has brought this appeal. His notice of appeal which is at pages 121-124 of the record of this appeal contains two grounds of appeal.
In line with the relevant rules of this Court, parties filed and exchanged briefs of argument. The Appellant formulated two issues for determination of this appeal at page 3 paragraphs 4.01 and 4.02 of his brief of argument dated 16th of April 2010.
These issues read as follows:-
i. Whether the circumstance of this case the burden of proof that the Appellant made the statements in exhibits A and A1 under duress is on the Appellant?
ii. Whether it was necessary that the Appellant file further and better affidavit in answer to new facts in the Respondents counter affidavit alleging that Exhibits A and A1 constitute an agreement between the Appellant and the Respondent to compound the offence contained in Exhibit AG5?
At page 3 of the Respondent’s brief of argument dated 17th of May 2010 and filed on the same day, one issue only is formulated as follows:-
“Whether having regard to the evidence placed before the lower court, the learned trial judge was not right to have dismissed the Appellant’s suit.
Appellant filed a reply brief on the 26/5/2010. Same will be considered in course of this judgment.
Before I consider the argument of parties in this appeal, it is pertinent to set out in brief the sequence of events that led to this appeal.
The facts which are set out in the Appellant’s brief of argument show that, sometimes in 2005, the Respondent received a petition against Chief DSP Alamieyeseigha, a former governor of Bayelsa State. During the investigation which followed the petition, it was found that the former governor of Bayelsa State bought the property known as Chelsea Hotel Abuja with funds belonging to Bayelsa State government using one of his companies, Herbage Global Services Ltd. The property was sold to Alamieyeseigha by Patnasonic Industries Ltd, a Company owned by the Appellant for one Billion Five Hundred Million Naira and a sale agreement evidencing the sale was made.
Following the filing of a charge against chief DSP Alamieyeseigha and Herbage Global services Ltd the Appellant herein obtained an order of temporary forfeiture against the properties of the accused persons in the charge. While the said temporary forfeiture was pending and after Alamieyeseigha was impeached, the Appellant entered into another agreement with the new government of Bayelsa state with the sole aim of re-transferring chelsea Hotel Abuja to Bayelsa state Government and in the process he misled the government that he sold the property for two billion naira and that he was only paid one and a half billion naira, leaving a balance of N500,000,000 for this wrong advise a fresh agreement was entered between the Appellant and the Bayelsa state Government for N400,000,000, as a result a cheque of N400,000,000 was issued to the Appellant. The investigation report and the cheque that was issued to the Appellant by Bayelsa State Government are not part of the evidence in this appeal.
Mr. Imhanobe learned counsel for the Appellant who settled the Appellant’s brief of argument, submitted on issue one that since the Appellant had denied making his extra judicial statements, Exhibits A and A1 voluntarily, the burden of proving that the statements were made voluntarily was on the Respondent. According to the learned counsel, the Respondent did not challenge the Appellant’s averment at paragraphs 6, 7, 8 and 9 of the supporting affidavit where he deposed that Exhibits A and A1 which were admitted as Exhibit AG8 were not made voluntarily. In a further argument, learned counsel submitted that the learned trial judge was therefore wrong to have held that there was nothing on the face of the statements, Exhibits AG8 that they were made under duress and that the onus was on the Appellant to prove that the allegation of duress which he failed to do. Finally learned counsel urged the Court to hold that where a trial court makes a wrong finding as to the person on whom the burden of proof lies, the Appellate Court ought to allow the appeal.
Mr. Rotimi Jacobs, learned counsel for the Respondent, who also settled the Respondent’s brief of argument submitted forcefully that the matter at the lower court is a civil case, as such Exhibits A and A1 were not confessional statements. Learned counsel quoted a portion of Exhibit A and Exhibit 41, and submitted that it is not reflected in the Appellant’s statements that he committed an offence, as such the cases of NWACHUKWU VS THE STATE (2002) 2 NWLR (PT.751); OBIDIOZO VS STATE (1987) 4 NWLR (PT.67) 748 and KASA vs THE STATE (1994) 5 NWLR (PT.344) 269 are irrelevant in this case. Finally learned counsel urged this Court to dismiss the appeal.
In the reply brief, learned counsel for the Appellant submitted that the lower court’s reference to Exhibits A and A1 as agreement to compound the offence contained in Exhibit AG5 is erroneous, since these Exhibits were titled “THE STATEMENT OF WITNESS/ACCUSED” and contained a formal caution, before the statements were taken. Learned counsel went on to comment on what burden of proof under a civil case connotes and contended that in view of the state of affidavit evidence, the learned trial judge was in law duty bound to conduct a trial within trial to determine the voluntariliness of the Appellant’s statements in Exhibits A and A1 (also attached as Exhibit AGB to the Respondent’s counter affidavit). According to the learned counsel, if the learned trial judge had conducted a trial within trial, the burden of proof would have shifted to the Respondent, to prove beyond reasonable doubt that the Appellant’s statements in Exhibits A and A1 were made voluntarily in accordance with Section 27 (2) of the Evidence Act. Learned counsel made reference to the authority of OKAFOR VS EZENWA (2002) 13 NWLR (PT.784) 313 at 337 paragraph A-D where it was held that once a Court misdirects itself as to the onus of proof and cast same on the wrong Party, it will be assumed that there has been a miscarriage of justice, and urged the Court to reject both the arguments of the Respondent and the decision of the trial judge that the onus is on the Appellant to prove the allegation of duress.
At paragraphs 6 to 9 of the affidavit in support of the Appellant’s originating summons, the Appellant enumerated the circumstances under which he made Exhibits A and A1. For the avoidance of doubt, I reproduce hereunder the paragraphs of the affidavit thus:-
“6. That for the period exceeding 30days that I was detained by the Defendant my family and business suffered serious loss.
7. That for the period that I was detained by the Defendant, my health started to deteriorate.
8. That on the 23rd day of June 2006, I had no alternative than to concede to the Defendant’s pressure that it must forfeit the sum of N400, 000,000.00 (Four Hundred Million Naira) only to secure my bail.
9. That on that same day, 23rd day of June 2006, I made two different statements under duress to forfeit to the Defendant the Standard Chartered Bank Cheque No.00052310 for the sum of N100,000,000 (one Hundred Million Naira) only which I forfeited to the Defendant in circumstances described above.”
By the depositions herein, the Appellant has admitted that he made confessional statement under duress and therefore the lower court should have conducted a trial within trial. Section 27 (1) of the Evidence Act defines confession as follows:-
“A confession is an admission made at anytime by a person charged with a crime, stating or suggesting the inference that he committed that crime.” See AKPAN v. STATE (2001) 7 SC (Pt.1) 124; DANIELS v. STATE (1991) 1 NWLR (PT.212) 715; MILLA VS THE STATE (1985) 3 NWLR (PT.11) 190.
The appeal herein is against a civil decision initiated by the Appellant at the lower court. I therefore do not understand how the lower court would have embarked on a trial within trial to unravel whether Exhibits A and A1 were not made voluntarily since the Appellant was not tried in that Court. It would have been a different scenario if the Appellant was arraigned before a Court on a criminal allegation in which he made those statements. I therefore agree with learned counsel for the Respondent that the case leading to this appeal is civil in nature and initiated by the Appellant. The proof required herein is on the balance of probabilities and the burden is on he who will loose the case if no further evidence is given. In this case it is the Appellant and I so hold.
At page 118 of the record of this appeal, the learned trial judge stated at paragraph three as follows:-
“In particular, the Defendant did not file a further and better affidavit to controvert the Defendant averments that the N100,000,000 (One Hundred Million Naira) cheque was deposited as part payment of the total sum of N400,000,000.00(Four Hundred Million Naira) belonging to Bayelsa State Government under an agreement to compound the alleged offence contained in Exhibit “AG5″ attached to counter affidavit’ Exhibits A and A1 attached to the Plaintiffs affidavit in support of the originating summons support the Defendant’s Position….”
Exhibits A and A1 and AG8 cannot and are not agreements between the Appellant and the Respondent. Indeed there was no such agreement that was produced to confirm that the Appellant did agree to pay some money in order to have the case against him compounded. These Exhibits are statement taken under caution and cannot therefore become agreement. What is clear here is that the issue of confession and trial within trial are matters within the realm of criminal trials and they cannot be imported into this matter which is purely a civil appeal. To that extent therefore I do not find merit on the Appellant’s first issue which I resolve in favour of the Respondent. The ground upon which it is formulated is hereby dismissed.
On the 2nd issue, Mr. Imhanobe submitted that the Court is not to accept facts deposed to in an affidavit as representing the true position of matters merely because they are uncontradicted or because the other party has not filed a counter affidavit. Learned counsel further submitted that a deposition of fact in an affidavit cannot be regarded as established if it is inconsistent with an Exhibit annexed to that affidavit. According to the learned counsel, paragraphs 17, 18 and 26 of the Respondent’s counter affidavit read together with Exhibits AG5 and AG8 of the counter affidavit will expose manifest falsehood in the story of the Respondent that the Appellant compounded his offence. Learned counsel pointed out that Exhibit AG8 was made before Exhibit AG5, as such it is not feasible that Exhibit AG8 was made to compound Exhibit AG5 which was at the time not available.
Finally, learned counsel submitted that Exhibit AG8 also known as Exhibits A and A1 are extra judicial statements made in pursuance of the judges rules. They are not agreement voluntarily entered into between the Appellant and the Respondent to compound any offence as was held by the learned trial judge.
For the Respondent, it is argued that the date inserted on Exhibit AG5 which is ‘2007’ was a typographical error. According to the learned counsel for the Respondent, the Exhibit was not dated and was never signed. It was merely to show the nature of the offence alleged against the Appellant. In a further argument the learned counsel submitted that the learned trial judge knew of the inadmissible nature of the documents and did not rely on same to come to his lordship’s conclusion.
Learned counsel made extensive submissions on the fact that the N100, 000,000 was not a deposit for bail of the Appellant from detention and finally urged the Court to dismiss the appeal.
In its judgment, the lower court considered the provision of Section 14 (2) of the Economic and Financial Crimes Commission (Establishment) Act, 2004 and concluded thus:-
“It is clear from the above provision that the Defendant has been given the unfettered power to compound any offence punishable under the Act. So the action of the Defendant in accepting the sum of N100,000,000 (One Hundred Million) from the Plaintiff as part payment of the sum of N400,000,000 (Four Hundred Million Naira) belonging to Bayelsa state Government in order to forego the prosecution of the Plaintiff, is not a forfeiture and is well covered under the provision of Section 14 (2) of the Act (supra) and I see nothing unconstitutional about the provision. I need only to add that where a person is charged to court of competent jurisdiction for any offence under the Act, the offence can only be compounded by the Defendant with the leave of the Court, But where as in this ease, the Accused was not arraigned before any Court of law, the Defendant can act and avail itself with the provisions of section 14 (2) supra and compound any offence under the act without any Courts intervention’s Section 14 (2) of the Act provides as follows:-
“subject to the provisions of Section 174 of the Constitution of the Federal Republic of Nigeria, 1999 (which relates to the power of the Attorney General of the Federation to institute, continue, takeover or discontinue criminal Proceedings against any person in Court of law), the commission may compound any offence punishable under this Act by accenting such sums of money as been convicted of that offence.” (underlining is mine)
The Black’s Law Dictionary, 6th Edition defines compounding crime in the following words:-
“Compounding crime consists of the receipt of some property or other consideration in return for an agreement not to prosecute or inform on one who has committed a crime.”
The same dictionary gives three elements at common law and under the typical compounding statute that must be present before an offence can be compounded. These elements are:-
1. An agreement not to Prosecute.
2. Knowledge of the actual commission of crime
3. Receipt of some consideration.
It is clear from the proceedings at the lower court that the Appellant had knowledge of the crime for which he was arrested and detained. This is so because all the statements he made were so made after he had been duly cautioned. It is also on record that he paid N100, 000,000 to the Respondent. However there is no evidence that there is a valid agreement between the Appellant and the Respondent on the issue of compounding the crime for which the Appellant was charged. The three elements in a typical compounding statute as is provided for under Section 14 (2) of the Act and they must be established conjunctively. I have held elsewhere that Exhibits A1, A2 or AG8 were statements taken after the Appellant was duly cautioned and are therefore not agreement between the parties in this appeal.
The critical portion of Section 14 (2) of the Act upon which the lower court relied, is the portion underlined by me. Even at the risk of repetition, I reproduce the underlined portion as follows:-
“Accepting such sums of money as it thinks fit, exceeding the maximum amount to which that person would have been liable if he had been convicted of that offence.”
From the provisions of Section 14 (2) of the Act, the amount liable to be accepted by the Respondent shall be such amount that a person convicted should have paid as fine. This is clearly the import of the section. For where the words of a statute are clear and unambiguous, they should be given their natural, literal and grammatical meanings.
Where a lacuna exist in the law, the remedy lies in an amendment by the legislature, the function of the Court being only to declare and not to make law. See MOBIL OIL (NIG) LTD VS FEDERAL BOARD OF INTERNAL REVENUE (1977) 3 SC 54; NABHAN VS NABHAN (1967) 1 ALL NLR 47; BUHARI VS OBASANJO (2003) 15 NWLR (PT.843) 236.
“Maximum amount to which that person would have been liable if he had been convicted.”
The N100, 000,000.00 (one Hundred Million Naira) received from the Appellant is said to belong to Bayelsa State Government. It is not representing the amount of fine which the Appellant would have paid if he were convicted. The collection of that money is certainly not in accordance with the provision of Section 14 (2) of the Economic and Financial Crimes Commission (Establishment) Act, 2004. Since the Respondent is not empowered under the provision of Section 14 (2) of the Act to collect the said money on behalf of Bayelsa State Government, such order to collect the money should have been made by the Court only, if the Appellant were arraigned before a Court of competent jurisdiction. Subsection 3 of Section 14 of the Act provides that all money’s received by the Commission under the provisions of subsection (2) of this section shall be paid into the Consolidated Revenue Fund of the Federation. This has further strengthen the fact that the cheque was collected unlawfully as money belonging to Bayelsa State Government cannot be paid into the Consolidated Revenue Fund of the Federation.
I have held in this judgment that there was no agreement between the parties to compound the offence. This being so, payment by the Appellant of the money aforesaid amounted to punishment. Section 36 (4) and (5) of the Constitution of the Federal Republic of Nigeria makes the following provisions: –
“36 (4) Whenever any Person is charged with a criminal offence; he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal….
(5) Every person who is charged with a criminal offence shall be presumed to be 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 such person the burden of proving particular facts.”
Applying this section of the Constitution to the cases of DR. DENLOYE VS MEDICAL & DENTAL PRACTITIONERS DISCIPLINARY COMMITTEE (1968) 1 ALL NLR 306 and GARBA & ORS VS UNIVERSITY OF MAIDUGURI (1986) 1 NSCC 245, the Supreme Court held DENLOYE’s case as follows:-
” Where the unprofessional conduct of the practitioner or the conduct of an individual amounts to a crime, it is a matter for the Courts to deal with; and once the Court has found a practitioner or such an individual guilty of an offence, then necessary action may be taken under the Act.”
At page 582 paragraphs G-H in GARBA & ORS vs UNIVERSITY OF MAIDUGURI (supra) the supreme court said:-
“The Board has, like the vice chancellor, to satisfy itself that the Appellants were guilty of the offences charged as misconduct before proceedings to impose the punishment, There is under our law no sliding scale or elements of satisfaction as to guilt of a person of an offence. The appearance of guilt is not a delusory appearance of guilt. The appearance of guilt which can satisfy this Section is measured by the quantum of proof as laid down by law. It is for this reason that guilt in criminal matters is left for the ascertainment of Courts of law or other tribunals before it is accepted and acted upon by Administrative Tribunals.”
The Respondent herein derives its powers from the Act establishing it. It has no powers under the Constitution to deprive a person suspected of committing a crime of his property when such a person has not been found guilty by a Court of competent jurisdiction. The Appellant’s Standard Chartered Bank Cheque No. 00052310 for the sum of N100, 000,000 (One Hundred Million) only was unlawfully collected from him.
For the reasons I have set out herein, this issue is resolved in favour of the Appellant. The ground upon which this issue is formulated is accordingly allowed.
Having resolved the first issue against the Appellant and the 2nd issue in his favour, this appeal is therefore allowed in part. It is therefore ordered that the Respondent releases forthwith to the Appellant the Standard Chartered Bank Cheque No. 00052310 for the sum of N100, 000,000 (One Hundred Million) only which the Respondent collected from the Appellant within 30 days.
I make no order as to cost.
MOHAMMED LAWAL GARBA, J.C.A.: I have read the lead judgment written by my learned brother GALINJE, JCA and am in complete agreement with the reasoning and conclusions contained therein which I adopt as mine.
JIMI OLUKAYODE BADA, J.C.A.: I had the opportunity of reading in draft the lead Judgment just delivered by my learned brother PAUL ADAMU GALINJE, JCA.
My Lord has dealt with the issues arising for determination in this appeal in a very lucid form. I agree with the reasons contained in the Judgment as well as the conclusion reached.
However I will also add for emphasis sake that pursuant to Section 36(4) and (5) of the 1999 Constitution of the Federal Republic of Nigeria, the Respondent lacked the power to confiscate the property of a person suspected of committing crime when such a person has not been found guilty by a Court of competent jurisdiction. This is because mere circumstances of suspicion cannot take place of legal proof.
This country is now under a Democratic government, we are no more under a military regime where an Institution or a person can act unlawfully and get away with it.
Consequent upon the foregoing, it is also my view that the Respondent unlawfully collected the Appellant’s Standard Bank Cheque No: 00052310 for the sum of =N=100,000,000.00 (One Hundred Million Naira) and it should be released to him (i.e. the Appellant) without further delay.
It is for the above reasons and fuller reasons in the lead Judgment that I too allow this appeal in part.
I abide by consequential orders made in the said lead Judgment.
Appearances
Mr. Imhanobe with Chidi Nwachukwu and Chitan Olufo For Appellant
AND
Mr. Adebisi Adeniyi For Respondent
