DON PARKER PROPERTIES LTD v. FRN (2022)

DON PARKER PROPERTIES LTD v. FRN

(2022)LCN/16380(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, April 13, 2022

CA/L/729/2021

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

DON PARKER PROPERTIES LIMITED APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO:

DUTY OF PROSECUTION IN TO ESTABLISH THE GUILT OF THE ACCUSED PERSON BEYOND REASONABLE DOUBT

The Prosecution has the onus of proving all the material ingredients of the offence(s) charged beyond reasonable doubt. See STATE v SADU [2001] 33 WRN 21 at 40. Where the prosecution fails so to do, the charge is not made out and the Court is bound to record a verdict discharging and acquitting the accused. See MAJEKODUNMI v THE NIGERIAN ARMY [2002] 31 WRN 138 at 147. Also, if on the totality of the evidence adduced, the Court was left in a state of doubt or uncertainty, the prosecution would have failed to discharge the onus of proof cast upon it by law and the accused would be entitled to an acquittal. See UKPE v STATE [2001] 18 WRN 84 at 105. PETER OYINKENIMIEMI AFFEN, J.C.A.

POSITION OF LAW ON PROOF BEYOND REASONABLE DOUBT

However, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt, but such proof as would reasonably and/or irresistibly lead to the inference that the accused committed the offence. See AKINYEMI v STATE [1999] 6 NWLR (PT 607) 449, ONI v STATE [2003] 31 WRN 104 at 122 and MILLER v MINISTER OF PENSION (1947) 2 ALL ER 372 at 373. PETER OYINKENIMIEMI AFFEN, J.C.A.

POSITION OF LAW IN CONSIDERING A PLEA OF NO-CASE-TO-ANSWER

It is well settled that in considering a plea of no-case-to-answer at the close of the prosecution’s case, the Court is not required to enquire into the guilt or otherwise of the accused person per se by undertaking a comprehensive evaluation of evidence adduced thus far. Rather, the Court is preoccupied with ascertaining whether a prima facie case was made out to warrant calling upon the accused person to enter upon his defence. The decision should depend not so much on whether the adjudicating Tribunal would at this stage convict or acquit the accused, but whether the evidence adduced is such that a reasonable Tribunal could convict on it. See ATANO v ATTORNEY-GENERAL, BENDEL [1988] 2 NWLR (PT. 75) 201. PETER OYINKENIMIEMI AFFEN, J.C.A.

MEANING OF NO-CASE SUBMISSION

The chief rationale behind a no-case submission is that the accused person [who is presumed innocent until proved guilty] should not be saddled with the burden of defending himself when there is no evidence upon which a trial Court could validly convict. PETER OYINKENIMIEMI AFFEN, J.C.A.

PRINCIPLE OF NO-CASE SUBMISSION

In the leading case of IBEZIAKO v COMMISSIONER OF POLICE (1963) 1 ALL NLR 61 at 67-68, the Supreme Court (per Adetokunbo Ademola, CJF) referred to the Practice Note issued by Parker, LCJ (reported in [1962] 1 All E.R. 448) and held that a no-case submission may properly be made and upheld when: (a) there has been no evidence to prove an essential element in the alleged offence; and (b) the evidence adduced by the prosecution has been so discredited as a result of cross-examination, or it is so manifestly unreliable that no reasonable tribunal could safely convict on it. See also FIDELIS UBANATU v C. O. P. supra at 136 –per Kalgo JSC, STATE v AUDU (1972) 6 SC 28, ONAGORUWA v STATE [1993] 7 NWLR (PT. 303) 49 and AGBO v THE STATE (2013) LPELR-20388 (SC) amongst a host of other cases. These requirements have now been codified in S. 303 (3) (a) – (d) of the Administration of Criminal Justice Act, 2015 (hereinafter “ACJA”). PETER OYINKENIMIEMI AFFEN, J.C.A.

DUTY OF COURT WHEN THERE IS PRIMA FACIE CASE AGAINST A DEFENDANT

PETER OYINKENIMIEMI AFFEN, J.C.A. (Delivering the Leading Judgment): Introduction
The Appellant [Don Parker Properties Ltd] was arraigned alongside three others on 8/11/2018 before the Lagos Division of the Federal High Court (“the lower Court”) on a 45-count charge of conspiracy and money laundering in Charge No. FHC/L/238/2018: Federal Republic of Nigeria v Engr. Tuoyo Omatsuli & 3 Ors, to which they all pleaded ‘not guilty’. The charge was subsequently amended once and again in the course of trial: the extant one being the 2nd Amended 52-count charge (copied at pp. 1381-1406 in Volume II of the records). The Appellant and his co-defendants, again, indicated a ‘not guilty’ plea on 7/7/2020. In a frantic bid to discharge the non-shifting burden of establishing guilt on the criminal threshold of proof beyond reasonable doubt, the Respondent (qua prosecution) fielded 16 of the 19 witnesses listed in the proof of evidence, and tendered Exhibits ETO1-ETO34. At the close of the Respondent’s case, the Appellant and two of his co-defendants (i.e. Francis Momoh and Building Associates Limited) jointly made a submission of no-case-to-answer. The 1st Defendant [Engr. Tuoyo Omatsuli] did likewise. In a ruling delivered on 11/11/2020 (which lies at pp. 1752-1755 in Volume III of the records), his Lordship, Saliu Saidu, J. upheld the 1st Defendant’s no-case submission and discharged him, but overruled the joint no-case submission of the Appellant and other co-defendants, and ordered them to enter upon their defence. This present appeal, commenced by a Notice of Appeal dated and filed on 2/11/21 but deemed properly filed on 9/11/21, is an expression of the Appellant’s discontent with the part of the ruling overruling the joint no-case submission. As enjoined by the Rules of this Court, the parties filed and exchanged briefs of arguments. The Appellant’s Brief was deemed properly filed on 9/11/21, whilst the Respondent’s Amended Brief and the Appellant’s Reply Brief were deemed properly filed on 20/1/22. This appeal was heard on 20/1/22.

Issues for determination
Whereas a lone issue for determination is distilled in the Respondent’s Brief, namely: “Whether from the evidence adduced by the 1st Respondent (sic) at the lower Court, the learned trial Judge was not right in holding that the Appellant had a case to answer and thereby ordered it to open its defence”, three issues are identified in the Appellant’s Brief as follows:
(a) Whether the lower Court was right, from the state of evidence before the Court, to have held that with regards to the Appellant, a prima facie case has been established against it that will require it to enter its defence?
(b) Whether the evidence led against the Appellant and the 4th Respondent (sic) cannot be severed for being inextricably interwoven such that a discharge of one must as a matter of law affect the others?
(c) Whether the lower Court’s insistence that the Appellant enter its defence despite the paucity of evidence adduced by the 1st Respondent (sic) does not amount to asking the appellant to establish his innocence contrary to the adversarial system of administration of justice as enshrined in the Constitution of the Federal Republic of Nigeria, 1999 “as amended”? (relates to ground three of the notice of appeal).”

Upon careful and insightful consideration of the issues identified by the parties as reproduced above, it seems to me that the Respondent’s lone issues encompasses and subsumes the Appellant’s three issues. What is at issue in the instant appeal is the propriety of the lower Court’s dismissal of the Appellant’s no-case submission and calling upon it to enter a defence in light of the testimonial and documentary evidence presented by the Respondent (qua prosecution). Thus, notwithstanding that the Appellant is the proponent of this appeal, I propose to determine the same on the basis of the Respondent’s lone issue.

Appellant’s submission
The Appellant referred to Ss. 392 and 303 of the Administration of Criminal Justice Act (ACJA) and submitted that the lower Court erred in holding that a prima facie case has been established against it alongside the 2nd and 3rd co-defendants, insisting that the evidence put forward by the Respondent, having been thoroughly discredited under cross-examination, was so manifestly unreliable to secure conviction and the burden of establishing prima facie case at that stage of the trial was not discharged; and that upon a cursory appraisal of the particulars of offences alleged in Counts 1-52 of the 2nd Amended Charge, the relevant statutes and the evidence adduced by the Respondent in proof of each count, the lower Court ought not to have called upon it to open its defence. The Appellant referred to the definition of “proceeds” in S. 25 MLPA and contended (based on its appreciation of the testimonial evidence of PW1, PW4, PW11, PW13 and PW15 under cross-examination) that the funds and property or valuables in issue cannot be said to be proceeds of corruption and gratification or other unlawful activity. The Appellant harped on evidence led by prosecution witnesses to the effect that: (i) the contract to recover statutory payments due to NDDC from oil companies was duly awarded to Starline Consultancy by NDDC; (ii) payments made by NDDC to Starline Consultancy in respect thereof were not proceeds of crime; and (iii) that moneys meant for Niger Delta Youths which was paid by Starline Consultancy into various accounts were not meant to bribe any NDDC official to release payments due under the contract. The Appellant maintained that the evidence of PW6, PW7, PW8, PW10, PW12 and PW14 confirmed that properties listed in the charge were not acquired from unlawful sources, thus it is not for the sellers to establish the legality of the transaction, citing EFCC v THOMAS (2018) LPELR-45547(CA) at 24-35 –per Nimpar, JCA; that money laundering cannot stand on its own without an illegal source that constitutes a predicate offence, citing DAUDU v STATE (2018) LPELR-43637(SC); and that the Respondent sought to establish that funds in the various accounts in the respective banks were proceeds of unlawful activity by calling PW2, PW3, PW5 and PW9 (who are bankers) but failed to substantiate these allegations as the witnesses testified that the accounts were not flagged notwithstanding that the funds exceeded statutory limit because they lodged a report with EFCC which conducted enquiry thereon and found that the source of the funds from NDDC was not unlawful.

The Appellant further contended that the Respondent failed to adduce cogent, compelling, and conclusive circumstantial evidence to establish the elements of conspiracy, calling in aid ONYENYE v STATE [2012] 15 NWLR (PT. 1324) 586, STATE v SALAWU (2011) LPELR-8252(SC), LORI v STATE (1980) 8-11 SC 86 and LEYE ADEJUYIGBE v FEDERAL REPUBLIC OF NIGERIA (2017) LPELR-43801 (CA). The Appellant highlighted the separate and distinct personality of a company from its proprietors, directors or human agents as enunciated in SALOMON v SALOMON (1897) AC 22 and ROYAL PETROLEUM CO. LTD v FIRST BANK OF NIGERIA LTD [1997] 6 NWLR (PT. 510) 584 and insisted that S. 25 MLPA 2011 makes it clear that neither it nor the 4th Respondent is a Designated Non-Financial Institution (DNFI) required to submit reports to the Federal Ministry of Industry, Trade and Investment, especially as they were not invited/questioned and no investigation was conducted, placing reliance on S. 36(4) CFRN, S. 20(1) NFIU Act 2018 and the case of GYANG & ANOR v COP, LAGOS STATE & ORS (2013) LPELR-21893(SC) at 12-13, and insisting that the testimonial evidence of PW16 and Exhibits ETO 25A/ETO 25B reveal that notice of non-compliance was not served on it and Building Associates Ltd, nor reference made to Federal Ministry of Industry Trade and Investment. The Appellant argued that the NFIU is the appropriate authority to enquire into non-compliance by a DNFI under the NFIU Act, as such the power hitherto vested on EFCC under S. 10(1) MPLA is spent; that the Respondent failed to establish the actus reus or mens rea (or both) of the alleged offences, citing FAWEHINMI v IGP (2002) LPELR-1258(SC) (on the illegality of arresting a suspect without sufficient evidence upon which to charge him/her); DIAMOND BANK PLC v HRH EZE DR. PETER OPARA (2018) LPELR-43907 (SC) at 27, OTERI & ORS v OKORODUDU & ANOR (1970) ALL NLR 199 and OGUNDELE & ANOR v AGIRI & ANOR (2009) LPELR-2328 (SC) at 36 (on the proposition that suspicion however great, grave or strong, goes to no issue). It is forcefully submitted that where two or more persons are jointly charged and the evidence adduced is inextricably woven around all of them as in the instant case, the discharge of one (or some) for want of convicting evidence automatically affects all others since the evidence is tied together like Siamese twins at the umbilical cord with their mother, citing CHIEF EMMANUEL EBRI v THE STATE (2004) 11 NWLR (PT. 885) 589 at 604 –per Niki Tobi, JSC; that since all the alleged unlawful transactions are tied to the alleged involvement of Engr Tuoyo Omatsuli [1st Defendant] in unlawful activities whilst being a public officer, his discharge necessarily dislodges the charges against the Appellant, placing reliance on UAC v MCFOY (1962) A.C.152; and that the 1st Defendant’s discharge shows that the prosecution’s case is manifestly unreliable such that no reasonable Court could safely convict the Appellant, citing OKORO v STATE (2012) LPELR-7846 (SC). The Appellant reiterated that the alleged illicit origin of funds (which is the fulcrum of the charge against it) is unsustainable since all the transactions alleged to be unlawful activities are connected to the 1st Defendant already discharged by the lower Court on the basis of evidence that is intricately intertwined and cannot be severed. The case of OGUNBODEDE v FRN (2018) LPELR-44883(CA) at 39–41 was referred to. The Appellant submitted that its right to fair hearing enshrined in S. 36 (1) CFRN was undermined when the lower Court overruled its no-case submission notwithstanding the paucity of evidence, insisting that there is no obligation on an accused to establish his innocence under our accusatorial criminal justice system wherein doubts are resolved against the prosecution, citing IGABELE v THE STATE (2006) 6 NWLR (PT. 975) 100 at 127, MUMUNI v THE STATE (1975) 6 S.C. 79 and FRN v KAYODE BECKLEY [2020] 16 NWLR (PT 1750) 219 at 257-258. The Appellant equally cited JIM-JAJA v C.O.P. [2011] 2 NWLR (PT. 1231) 375 at 393, USMAN v THE EXECUTIVE CHAIRMAN, EFCC (2018) LPELR-44678(CA) OSADIM v TAWO (2009) LPELR-8209(CA), OKWUDIBA & ORS v NWANKWO & ORS (2018) LPELR-46074(CA) pp. 35-37 WILLOUGHBY v INTERNATIONAL MERCHANT BANK [1987] 1 NWLR 105 at 132 in urging this Court to allow the appeal, set aside part of the ruling of the lower Court overruling the no-case submission and discharge it accordingly.

Respondent’s submission
The Respondent submitted that credible evidence (which was neither discredited nor adjudged unreliable) was adduced in proof of the essential elements of the offences charged under the Money Laundering (Prohibition) Act, 2011 (“MLPA”) and the lower Court rightly dismissed the joint no-case submission presented by the Appellant and two co-defendants. The Respondent restated the principles governing no-case submission in S. 302 of the Administration of Criminal Justice Act, 2015 (“ACJA”), and cited a host of decided cases including, notably, DABOH & ANOR v STATE (1977) 5 SC 197 at 209 –per Udo-Udoma, JSC and AJULUCHUKWU v STATE [2014] ALL FWLR (PT. 749) 1015 on what the Court looks out for when grappling with a no-case submission. The Respondent maintained that the definition of “unlawful act” in S. 15(6) MLPA reveals an all-crime approach to the offence of money laundering under S. 15(1), (2) and (3) thereof, which covers proceeds (whether directly or indirectly) from any criminal act under any law in Nigeria, otherwise known as predicate offences, citing FRN v YAHAYA (2015) LPELR-24269(CA) and S. 25 MLPA, and insisting that it is immaterial who launders the money: the perpetrator of the predicate offence, his agent, nominee, associate or any other person can be guilty of laundering the proceeds of crime vide OGUNBODEDE v FRN (2018) LPELR-44883(CA). Guided by the cases of DAUDU v FRN [2018] 10 NWLR (PT. 1626) 169 FRN v ADAMU (2018) LPELR-46024 (CA) and KALU v FRN (2012) LPELR-9287 (CA) and BASHIR v FRN (2016) LPELR-40252(CA), the Respondent examined the ingredients of the offences with which the Appellant is charged in Counts 1, 17, 19, 21, 24, 25, 26, 27, 28 and 29, as well as summarised the testimonial evidence of PW4, PW11, PW1, PW2, PW3, PW5, PW13 and PW15; and contended that the evidence adduced disclosed that the huge payments made by Starline Consultancy Services Ltd through proxies nominated by the 1st Defendant were directly or indirectly proceeds of official corruption and gratification, which proceeds were used to acquire and/or transfer various landed property situate at Lekki Peninsula, Eti-Osa, Lagos as shown in Exhibits ETO 12, ETO 18 and ETO 22; that there is also clear evidence that the Appellant and its co-defendants transformed funds that are proceeds of unlawful activity into property as well as disguised the illicit origin of the payments made by Starline Consultancy Services Ltd into the account of Building Associates Ltd as “appreciation” by applying the said funds to purchase property.

The further contention of the Respondent is that Counts 27, 28 and 29 revolve around the running and management of the Appellant (being a private business other than farming) by Engr. Tuoyo Omatsuli (1st Defendant) as shown in Exhibit ETO 10 contrary to S. 6 of the CCB & TA, insisting that the transfer of proceeds of crime by the Appellant and its alter ego (Engr. Tuoyo Omatsuli) who is a public officer completes the money laundering process. The Appellant submitted that the evidence adduced and exhibits tendered clinically show that the N3.645 billion paid by Starline Consultancy Services Ltd into the account of Building Associates Ltd nominated by the Appellant’s alter ego constitutes proceeds of corruption and gratification; and that since the funds received into the account of Building Associates Ltd were largely transferred and utilised for the benefit of the Appellant and its alter ego, the lower Court was right in dismissing the no-case submission in relation to the Appellant and two co-defendants. The Respondent insisted that by virtue of the 2013 Regulations issued by the Minister of Industry, Trade and Investment (ETO 34) pursuant to the S. MLPA [which has the force of law and can be taken judicial notice of by the Court vide EJEGI v C. O. P. (1977) LPELR-1060(SC) and OGBOJA v ACCESS BANK PLC [2016] 2 NWLR (PT. 1496) 219 at 317-318], the Appellant is a DNFI and Engr Tuoyo Omatsuli (1st Defendant) was its alter ego/director at all material times; that service of notice of default is not a precondition for preferring a criminal charge against a DNFI under the MLPA or any other law, hence no such law has been cited; that the Appellant’s contention that the operative law is not the MLPA 2011 but the NFIU Act 2018, and the appropriate authority to which DNFIs are enjoined to make declarations is the NFIU but not EFFC misconceives the legal effect of repeal of an enactment as provided in S. 6(1) of the Interpretation Act, 2004, which has been interpreted and applied in BUKAR v QUEEN (1961) LPELR-24995(SC), NTOE ANDREW ANSA & ORS v REG. TRUSTEES OF PRESBYTERIAN CHURCH OF NIGERIA (2007) LPELR-4636 (CA), WAGBATSOMA v FRN (2015) LPELR-24649(CA) and ONTARIO OIL & GAS NIG LTD v FRN (2015) LPELR-24651(CA) at p. 76; and that the position would have been different if it was a procedural (as opposed to a substantive) legislation that was in issue, in which case the operative law would be the enactment in force at the time the right or liability is being activated, citing ADIO v STATE (1986) LPELR-184(SC). The Respondent noted that the Appellant failed to substantiate alleged contradiction in the evidence adduced by prosecution witnesses, insisting that in order for inconsistency or contradiction in evidence of the prosecution to negatively affect its veracity, it must be materially significant to the extent that it has an overall negative impact on the prosecution’s case vide JOHN v STATE [2011] 18 NWLR (PT. 1278) 353 and STATE v AZEEZ & ORS (2008) 4 SC 188; that whereas a piece of evidence is contradictory to another if it asserts or affirms the opposite of what the other asserts and not necessarily when there are some minor discrepancies in the details [see IKUEPENIKAN v STATE (2011) 1 NWLR (PP. 1229) 449 and AYO GABRIEL v STATE (1989) 12 SCNJ 33], the sketchy extracts from the testimonial evidence of PW1, PW4, PW11, PW13 and PW15 highlighted in Appellant’s submission do not constitute contradictions as no witness testified the opposite of what he earlier testified or what another witness testified; that no amount of brilliance in address of counsel can augment dearth of evidence to prove, disprove or demolish facts in issue, calling in aid the cases of OSUIGWE v NWIHIM [1995] 3 NWLR (PT. 386) 752 (CA) and ISHOLA v AJIBOYE [1998] 1 NWLR (PT. 532) 71 (CA). The Respondent submitted that notwithstanding that the office of EFCC Office (like that of the police) is ordinarily not a Tribunal or Court where the principles of fair hearing in public is constitutionally obligatory as held in ONYUIKE v PEOPLE OF LAGOS STATE (2013) LPELR-24809(CA) at 26-29, the Appellant’s rights were not breached as its alter ego was interviewed and made extra-judicial statements that were tendered as exhibits at the trial; that the essence of a charge is to give notice of allegation against an accused person and counts in a charge do not offend fair hearing: the charge was read to the Appellant, plea was taken and prosecution witnesses were cross-examined and no-case submission was raised, etc., before the Court called upon the Appellant to enter upon its defence. The Respondent maintained that it is fallacious to argue that once an accused person in a joint trial is acquitted, his co-accused person must also be acquitted, citing IKEMSON v STATE [1989] 3 NWLR (PT. 110) 455 at 480 and IDIOK v STATE [2008] 13 NWLR (PT. 1104) 225, and insisting that the 1st Defendant’s acquittal was erroneous in the first place and it behoves this Court to correct the error. The Respondent commended the case of OGUNBODEDE v FRN (2018) LPELR-44883 (CA) and maintained that Appellant failed to demonstrate how the finding of the learned trial Judge was wrong in relation to it nor did it demonstrate that prosecution witnesses were discredited or their evidence rendered unreliable in any manner or that the evidence led did not link it to the offences charged. The Respondent further reacted to the Appellant’s specific submissions and urged this Court was urged to dismiss the appeal.

Resolution of Appeal
It is merely restating the obvious that our adversary criminal justice system is accusatorial in nature and substance, and every person charged with a criminal offence is presumed innocent until he is proved guilty. See S. 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

A necessary corollary of the presumption of innocence is that in a criminal trial such as the present, the burden is always on the prosecution to establish the guilt of the accused person beyond reasonable doubt. Quite unlike civil proceedings, this burden on the prosecution is static in a manner akin to the fabled constancy of the ‘Northern Star’ and never shifts to the accused. It is if, and only if, the prosecution succeeds in proving the commission of a crime beyond reasonable doubt that the burden shifts to the accused to establish that reasonable doubt exists. See Ss. 135 and 137 of the Evidence Act, 2011. The Prosecution has the onus of proving all the material ingredients of the offence(s) charged beyond reasonable doubt. See STATE v SADU [2001] 33 WRN 21 at 40. Where the prosecution fails so to do, the charge is not made out and the Court is bound to record a verdict discharging and acquitting the accused. See MAJEKODUNMI v THE NIGERIAN ARMY [2002] 31 WRN 138 at 147. Also, if on the totality of the evidence adduced, the Court was left in a state of doubt or uncertainty, the prosecution would have failed to discharge the onus of proof cast upon it by law and the accused would be entitled to an acquittal. See UKPE v STATE [2001] 18 WRN 84 at 105.

For present purposes however, we are not grappling with whether the guilt of the accused person was been established on the criminal threshold of proof beyond reasonable doubt. As stated hereinbefore, this present appeal is an offshoot of the lower Court’s ruling on a no-case submission by the Appellant and two co-defendants. It is well settled that in considering a plea of no-case-to-answer at the close of the prosecution’s case, the Court is not required to enquire into the guilt or otherwise of the accused person per se by undertaking a comprehensive evaluation of evidence adduced thus far. Rather, the Court is preoccupied with ascertaining whether a prima facie case was made out to warrant calling upon the accused person to enter upon his defence. The decision should depend not so much on whether the adjudicating Tribunal would at this stage convict or acquit the accused, but whether the evidence adduced is such that a reasonable Tribunal could convict on it. See ATANO v ATTORNEY-GENERAL, BENDEL [1988] 2 NWLR (PT. 75) 201. In different words, what the trial Court seeks to ascertain at this stage is whether on the face of the evidence adduced thus far by the prosecution upon whom the non-shifting burden of proof lies, there is a ground for proceeding with the trial in that there is something worth looking at. Generally, there is ground for proceeding where the evidence before the Court is such that if uncontradicted and if believed will be sufficient to prove the case against the accused person. See DURU v NWOSU [1989] 1 NWLR (PT. 113) 24 –per Nnamani, JSC FIDELIS UBANATU v C. O. P. [2002] 2 NWLR (PT. 643) 115 and IKUFORIJI v F. R. N. [2018] LPELR-43884(SC) at 20-21.

In considering whether or not there is prima facie case against a defendant, the trial Court is bound to confine itself severely to the evidence adduced in Court [see MOHAMMED v STATE [2007] 7 NWLR (PT. 1032) 152 (SC)], and the case of DABOH & ANOR v. STATE (1977) 5 SC 197 at 209–per Udo-Udoma, JSC donates the proposition that the case ought to proceed for the accused to explain his own side once there is evidence however slight linking him with the offence charged. At pp. 1754-1755 in Volume III of the records, the lower ruled thus:
“I have gone through all the Count contained in the Charge against the Defendants in this case and I am satisfy (sic) that the Prosecution has not been able to prove elements of the offences charged against the 1st Defendant to enable this Court call on him to enter his defence, I hereby discharge the 1st Defendant in this case. While, with regards to the 2nd, 3rd and 4th Defendants, I am satisfy (sic) that prima facie case has been established against them that will require them to enter their defence. This is the ruling of the Court.”

It can readily be gleaned from the foregoing that the lower Court did not proffer reasons for discharging the 1st Defendant and ordering the Appellant and the two co-defendants to enter upon their defence. Since the Appellant was charged jointly with his co-defendants in some counts of the charge, the legal or factual basis for treating the Appellant and two co-defendants differently from the 1st Defendant is difficult to think through. All four defendants are charged jointly in Counts 1, 23, 24 and 25. Engr Tuoyo Omatsuli (1st Defendant) is charged alone in Counts 2, 34, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45 and 46, and jointly with Don Parker Properties Ltd (2nd Defendant/Appellant) in Counts 17, 19, 21, 27, 28, 29, 47 and 48. Engr Tuoyo Omatsuli, Don Parker Properties Ltd and Francis Momoh (3rd Defendant) are jointly charged in Count 26; whilst Francis Momoh is charged alone in Count 49, and jointly with Building Associates Ltd in Counts 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 20, 22, 30, 31, 32, 33, 35, 50, 51 and 52. Given this state of affairs, I reckon that the lower Court ought to have explained why the 1st Defendant was discharged whilst the Appellant and others were ordered to open their defence in light of intricately interwoven evidence led by the prosecution against all of them. Giving reasons for deciding one way or another is an essential, if not indispensable, attribute of judicial decision-making. An unexplained decision (such as the Ruling appealed against) is a portrait of arbitrary or whimsical exercise of judicial power. It ought not to be so!

It is forcefully agitated on behalf of the Appellant that the alleged illicit origin of funds (which is the fulcrum of the charge against it) is unsustainable since all the transactions alleged to be unlawful activities are connected to the 1st Defendant already discharged by the lower Court. However, save for Counts 27, 28 and 29 of the 2nd Amended Charge bordering on the running and management of private business other than farming as a public officer, the part of the ruling of the lower Court embodying the discharge of the 1st Defendant [Engr. Tuoyo Omatsuli] has already been set aside in Appeal No. CA/L/1190/2020: FRN v Engr. Tuoyo Omatsuli (the judgment of which was delivered earlier today), wherein this Court held thusly:
“19. It is forcefully agitated on behalf of the Respondent that the charge of money laundering cannot fly in the absence of proof of any predicate offence since the testimony of prosecution witnesses (notably PW4, PW11, PW13 and PW15) is that moneys paid to Starline Consultancy Services Ltd by NDDC were not proceeds of crime, and that the money meant for Niger Delta Youths which was paid into various accounts by Starline Consultancy Services Ltd was also not “bribe” and therefore not proceeds of unlawful act under the MLPA. This argument appears quite attractive at first blush but does not bear close scrutiny. The very fact alone that the evidence adduced reveals that, based on discussions between the Respondent and the Executive Director of Finance and Administration (PW15), Starline Consultancy Services Ltd (which is a contractor with NDDC) was requested to pay, and actually paid, huge sums of moneys totalling N3.645b over a period of two years into the account of Building Associates Ltd (4th defendant) nominated by the Respondent (who was NDDC’s Executive Director Projects at the material time) as “appreciation” to members of Board of NDDC (allegedly to cushion the effect of reaching out to Niger Delta Youths) each time NDDC makes payment to Starline Consultancy Services Ltd, points compellingly to a prima facie case linking the Respondent to the unlawful activities alleged in the 2nd Amended Charge for which some explanation is required from him. The PW11 (who is an employee of NDDC) testified that the Respondent was a signatory to the accounts of NDDC in his capacity as Executive Director of Projects, and some of the approvals for payments to Starline Consultancy Services Ltd signed by him are contained in Exhibit ETO 21.
20. It occurs to me that “appreciation” is ordinarily a gift or other benefit given out of one’s volition or free will: it is not usually requested for by persons (such as the Respondent and PW15) who are in a position to approve payments due to the appreciator, who happens to be a contractor with NDDC. Also, how funds allegedly meant for Niger Delta Youths ended up being associated with the acquisition of choice property situate in Lekki Peninsula, Lagos as alleged in the 2nd amended charge calls for some explanation. This is necessarily so because a public officer (such as the Respondent) is not at liberty to receive any property, gift, favour or benefit of any kind in the discharge of official duties or in relation to any matter connected with the functions, affairs or business of a government department, corporate body, organisation or institution in which he/she is serving; and unless the contrary is proved, a presumption of criminality attends the receipt of any such property, benefit or promise by a public officer or some other person at his instance. See Ss. 8, 17 and 19 of the ICPC Act. As pointed out by learned counsel for the Appellant, the question of whether or not the payments made by Starline Consultancy Services Ltd as aforesaid constitute “bribe” or other unlawful activity under any law as defined in S. 15(6) MLPA is not an inference to be made by a witness of fact such as PW4: it is a conclusion only a Court of law can reach at the end of the case. See A-G, FEDERATION v OGUNRO [2001] 10 NWLR (PT. 720) 175 at 184.
21. It bears emphasising that the tenor of S. 15 MLPA is broad based: it adopts an all-crime approach to the offence of money laundering; and the prosecution may rely on any conduct that constitutes an unlawful act (crime) under any law in Nigeria as a predicate offence. Also, criminal liability is personal and non-transferable, and the mere fact that other members of the NDDC Board who may have benefited from the “appreciation” extended by Starline Consultancy Services Ltd have not been (or are not being) charged alongside the Respondent does not constitute a defence at law, and certainly not a valid basis for discharge and acquittal. See AKPA v THE STATE supra. It therefore seems to me that there was a clear basis for proceeding with the case, and the lower Court ought not to have discharged the Respondent upon a no-case submission. Especially is this so when the lower Court held on the basis of the same piece(s) of interwoven evidence that other defendants jointly charged with him in several counts have a case to answer. The law enjoins the lower Court to call on the accused to explain his own side once there is evidence linking him with the offence charged however slight, as in this case. See DABOH & ANOR v STATE supra.”

The point has already been made that all four defendants are charged jointly in Counts 1, 23, 24 and 25, whilst the Appellant is jointly charged with the 1st Defendant in Counts 17, 19, 21, 27, 28, 29, 47 and 48. The Appellant is also jointly charged with the 1st and 3rd Defendants in Count 26. Binding case law emphasizes the inappropriateness of embarking on a detailed evaluation of the evidence adduced by the prosecution at the stage of no-case submission. See AJIBOYE v. THE STATE [1995] 8 NWLR (PT. 414) 408 at 416. The proposition that ‘a ruling on a no-case submission should be as brief as possible’ therefore holds good when the Court is of the opinion that the submission is not well-founded and ought to be overruled, as in the instant case. The rationale is to prevent the Court from falling into the temptation of evaluating the evidence and predetermining the credibility of witnesses, making remarks or observations on the facts in order not to fetter its discretion [see UBANATU v C. O. P. supra and OMISORE v THE STATE (2005) VOL. 1 Q.C.C.R. 148 at 143], or generally “entering effectively into and even deciding the merits of a case, which full course was yet to run”. See EGHAREVBA v F. R. N. (2016) LPELR-40045(SC). Since the lower Court overruled the joint no-case submission of the Appellant and others but upheld that of the 1st Defendant, and this Court has already held in Appeal No. CA/L/CR/1190A/2020 that the lower Court erred in discharging the 1st Defendant [Engr. Tuoyo Omatsuli] at the stage of no-case submission, it certainly would be ill-advised to embark upon a detailed examination of the evidence adduced by the prosecution and/or undertake a rigorous analysis of the copious arguments canvassed by counsel on both sides of the divide, which create the erroneous impression that we are here confronted with whether the Appellant’s guilt has already been established at this stage. It seems to me that the arguments forcefully pressed by counsel, including notably the contention that the Appellant is not a DNFI and the Respondent’s insistence to the contrary, are substantive matters reserved for the trial Court to resolve at the trial. It bears reiterating that the Court’s preoccupation at the stage of no-case submission is not whether the evidence adduced is sufficient to establish guilt, but merely to ascertain whether the prosecution adduced evidence linking the Appellant to the offences alleged, however slight that may be. See DABOH & ANOR v STATE supra.

After judgment was reserved in this appeal, the Respondent forwarded two recent decisions of this Court in CA/LAG/CV/256/2019: FRANCIS MOMOH & ANOR v EFCC & 4 ORS and CA/LAG/CV/608/2019: WESTFIELD ENERGY RESOURCES LTD & 3 ORS v EFCC (both delivered on 15/12/21) affirming the civil (non-conviction based) forfeiture of some property alleged to be proceeds of unlawful activity in the present appeal. The Appellant was quick to point out that steps have already been taken to appeal the said decisions, which cannot be said to have finally determined the rights of the parties. On its part, the Appellant equally forwarded two foreign decisions on civil forfeiture proceedings, viz: (i) UNITED STATES v FUNDS IN THE AMOUNT OF $239 400, 795 F.3d 639 (7th Cir. 2015), and (ii) U.S. v LIQUIDATORS OF EUROPEAN 630 F.3d 1139 (9th Cir. 2011) as persuasive authority. I do not consider the additional authorities forwarded by both parties particularly helpful in determining the instant interlocutory appeal against the dismissal of the no-case submission presented by the Appellant and two co-defendants. This Court will not suffer itself to be inveigled or seduced by these additional authorities into making pronouncements that will prejudge the substance of charges still pending before the lower Court.

But as it relates to Counts 27, 28 and 29 of the 2nd Amended Charge, it does not seem to me that ‘participation by a public officer in the running and management of a private business other than farming’ upon which these counts are predicated constitutes an “unlawful act” within the meaning an intendment of S. 15(6) MLPA which provides thusly: “The unlawful act referred to in subsection two of this section includes participation in an organised criminal group, racketeering … sexual exploitation of children, illicit trafficking in narcotic drugs and psychotropic substances, illicit arms trafficking, illicit trafficking in stolen goods, corruption, bribery, fraud … or any other criminal act specified in this act or any other law in Nigeria”. Whilst engaging in private business other than farming by a public officer is undoubtedly a contravention of the Code of Conduct Bureau and Tribunal Act (CCB&TA), the relevant enquiry is as to whether the said conduct is specified as a criminal act thereunder or under any other Act or Law in Nigeria.
In this regard, whereas S. 6(b) of the CCB&T Act prohibits a public officer employed on full-time basis from engaging or participating “in the management or running of any private business, profession or trade” other than “farming or participating in the management or running of any farm”, S. 23(2) thereof prescribes “(a) vacation of office or any elective or nominated office, as the case may be; (b) disqualification from holding any public office (whether elective or not) for a period not exceeding ten years; and (c) seizure and forfeiture to the State of any property acquired in abuse or corruption of office” as the punishment that may be imposed by the Tribunal upon finding a public officer guilty of contravening the provisions of the Act. See EPEROKUN & ORS v UNIVERSITY OF LAGOS [2004] 16 WRN 90 at 160. More crucially, S. 23(3) thereof provides that: “The punishments mentioned in Subsection (2) of this Section shall be without prejudice to the penalties that may be imposed by any law where the breach of conduct is also a criminal offence under the Criminal Code or any other enactment or law”, which points compellingly to the fact that breach of conduct (including ‘engaging or participating in the management of a private business profession or trade other than farming by a public officer’) does not constitute a criminal offence under the CCBT & A. Learned counsel did not refer to any other law under which that particular conduct is so specified as a criminal offence, and I am not aware of any such law.
The point to underscore is that it is not every unlawful act or conduct that attains the threshold of a ‘criminal act’. In different words, a conduct may be unlawful, but not necessarily criminal. To my mind, an “unlawful act” that may constitute a predicate offence for purposes of money laundering is an act or conduct designated as a criminal offence under a written law. See AOKO v FAGBEMI (1961) 1 ALL NLR 400. Thus, “proceeds of an unlawful act” under S. 15 (2) MLPA refers to ‘proceeds of an act that constitutes a criminal offence’; and “any other criminal act specified in this Act or other law in Nigeria” in S.15(6) MLPA means an act or conduct that is not merely unlawful but one that constitutes an offence known to law which attracts penal sanctions and for which a person may be prosecuted and convicted in a Court of law. This being so, ‘engaging or participating in the management or running of any private business, profession or trade other than farming by a public officer’ does not constitute an unlawful act within the meaning and intendment of S. 15(2) MPLA, and ex ipso facto does not constitute the basis for a predicate offence for purposes of money laundering. The Appellant ought therefore to be discharged on the said counts.

Conclusion
This appeal succeeds in part, and it is ordered as follows:
(i) The part of the ruling of the lower Court dated 11/11/2020 dismissing the Appellant’s no-case submission is hereby set aside in respect of Counts 27, 28 and 29 of the 2nd Amended Charge. The Appellant is accordingly discharged on the said Courts.
(ii) The part of the ruling of the lower Court dated 11/11/2020 dismissing the no-case submission is affirmed as it relates to the residue of the counts preferred against the Appellant (whether severally or jointly with the others) in the 2nd Amended Charge. The Appellant shall enter upon its defence accordingly.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse in draft, the erudite leading judgment delivered by my learned brother: Peter O. Affen, JCA. I endorse in toto the legal reasoning and conclusion in it. l, too, allow the appeal in part in the manner contained in the leading judgment. I abide by the consequential orders decreed in it.

MUHAMMAD IBRAHIM SIRAJO, J.C.A.: The leading judgment in this appeal, prepared by my learned brother, PETER OYINKENIMIEMI AFFEN, JCA, a draft copy of which was made available to me before now, has exhaustively dealt with the lone issue formulated by the Respondent for the determination of the appeal. The issue was so comprehensively covered that any attempt to discuss it further will amount to repetition of the content of the leading judgment. I do not intend to embark on that repetitious exercise. My duty here is to express my total concurrence with the lead judgment which allowed the appeal in part in respect of counts 27, 28 and 29, and ordered the Appellant, Don Parker Properties Limited, to enter its defence with respect to the remaining counts. I have nothing more to add.

Appearances:

N. I. Quakers, SAN, with him, Michael Ogunjobi, Esq. and Dauda Abanazoza, Esq. For Appellant(s)

E. E. Iheanacho, Esq. For Respondent(s)