GABRIEL DAUDU V. FEDERAL REPULIC OF NIGERIA
In the Supreme Court of Nigeria
Thursday, January 25, 2018
Case Number: SC.172/2017
MARY UKAEGO PETER-ODILI
KUMAI BAYANG AKA’AHS
AMINA ADAMU AUGIE
PAUL ADAMU GALINJE
SIDI DAUDA BAGE
FEDERAL REPULIC OF NIGERIA
(DELIVERED BY KUMAI BAYANG AKA’AHS, JSC)
On 30 October, 2014 the Economic and Financial Crimes Commission (EFCC) preferred a 208 counts charge against the accused/appellant before the Federal High Court, Lokoja in Charge No. FHC/LKJ4C/2011 presided over by I. E. Ekwo J. He pleaded not guilty to each of the counts. Hon. Albert Soje (then Majority Leader) of the Kogi State House of Assembly was also arraigned with the accused/appellant on a two count charge but at the end of the trial he was acquitted and discharged.
The appellant was however convicted on 75 counts while he was acquitted and discharged on the remaining 133 counts. The appellant appealed against this decision to the Court of Appeal, Abuja in his Notice of Appeal dated 17 May, 2016 containing 11 grounds of appeal. A preliminary objection attacking grounds 4, 5, 6, 7, 8, 9 and 10 was raised and argued in the respondent’s brief which was filed on 14 November, 2016. The lower Court upheld the objection and struck out grounds 4, 5, 8, 9 and 10 of the Notice of Appeal as well as issues 1, 2 and 4. The appeal was dismissed and this prompted the further appeal to this Court. 12 grounds accompanied the Notice of Appeal filed on 14 March, 2017 from which Mr. J. B. Daudu SAN formulated the following five issues for determination: –
1. Whether the Court of Appeal was right or correct in law to have in one breath refused/struck out the respondents preliminary objection and immediately thereafter to consider the same objection as issues being raised by the same Court suo motu before striking out the appellant’s issues 3, 4, 6 and 7 which were predicated on grounds 4, 5, 8, 9 and 10 of the Notice of Appeal? (Issue No 1.) (Ground 2 of the Notice of Appeal).
2. Whether on the merit the Court below was correct in eliminating issues 3, 4, and 7 from the case of the appellant?( Issue No 2) (Grounds 3, 4 and 5 of the Notice of Appeal).
3. Whether the Court of Appeal was correct in law when it affirmed the decision of the Federal High Court placing the onus of proving his innocence in the 75 counts of money laundering on the appellant? (Issue No 3) (Grounds 6 and 7 of the Notice of appeal).
4. Whether the Court of Appeal was correct in law when it affirmed the decision of the Federal High Court that the prosecution had established all the ingredients of the offence of money laundering against the appellant? (Issue No 4)(Grounds 1 and 8 of the Notice of Appeal).
5. Whether the Court below was correct in law in affirming the decision of the trial Federal High Court that all the uncertified documents and Bank generated documents are admissible in evidence and if answered in the negative what is the effect of their expurgation from the case? (Issue No 5)(Grounds 9, 10, 11 and 12).
The respondent who was represented by Wahab Shittu Esq. formulated two issues as follows:-
1. Whether there are provable fundamental jurisdictional issues vitiating the trial proceedings of the appellant?
2. Whether the Prosecution has established the case against the appellant beyond reasonable doubt?
Learned Senior counsel filed an appellant’s reply brief. Learned senior counsel argued issues 1 and 2 together. He also took issues 3 and 4 together before considering issue 5 separately.
On issues 1 and 2 learned senior counsel submitted that the Court of Appeal erred in law when in one breath it dismissed the preliminary objection of the respondent to the appellant’s grounds of appeal and in another breadth proceeded to deal with the same objection suo motu and then struck out grounds associated with issues 3, 5, 6 and 7.
Learned counsel for the respondent argued that the Court of Appeal was right to have treated and dealt with the Preliminary objection raised by the respondent separately from the issues raised in the appeal.
The preliminary objection was struck out because it was not the appropriate mode to complain about some of the grounds of appeal. The lower Court stated its reasons for striking out the preliminary objection. It stated clearly that even if the objections were to succeed, hearing of the appeal on the remaining grounds would not be disturbed and the procedure which should have been adopted is to file a motion on notice to dispose of the matter before hearing the appeal, but not to come by way of preliminary objection. This reasoning is well grounded on the dictum of this Court per Rhodes-Vivour JSC in Adejumo v. Olawaiye (2014) 12 NWLR 9 (pt. 142) 252 at p.279 where he said:-
“A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal…… Where a preliminary objection would not be appropriate process to object or show to the Court defects in processes before it, a motion on notice filed complaining of a few grounds or defects would suffice”.
I consider the merits of this appeal should be considered under issue 3 and 4 of the appellant’s brief which is adequately covered under issue 2 in the respondents brief. Learned Senior counsel for the appellant in attacking the findings made by the learned trial judge contended that the onus fell on the appellant’s shoulders to establish the lawfulness or legality of each and every lodgement he made into his accounts thus reversing the time honoured rule that the burden of proof in criminal matters lies on the prosecution. He said the Court of Appeal got it wrong and fell into the same error as did the Federal High Court by shifting the onus of proof onto the appellant and failed to ascertain whether the ingredients of the offence of Money Laundering was established beyond reasonable doubt by the prosecution. He argued that the Court below in seeking to review the prosecution’s evidence from pages 1828-1838 and that of the defence could not link any of the funds charged to the Local government funds but decided to shift the onus of proof to the appellant.
It is learned senior counsel’s arguments that all the counts revolved around the provisions of Section 14(1)(a) of the Money Laundering (Prohibition) Act, which required the proof by the prosecution of the predicate offence. Consequently, by shifting the burden of proof to the appellant, his presumption of innocence which is constitutionally guaranteed was breached by the trial Court and the Court of Appeal. He submitted placing reliance on Sections 131, 132 and 135 Evidence Act, 2011 that in all criminal cases, the onus of proof is on the prosecution to prove the guilt of the defendant beyond reasonable doubt and the Supreme Court has interpreted the provisions of the Evidence Act in Egbirika v. State (2014) NWLR (pt. 1398) 558 at 562; Kalu v. FRN (2014) 1 NWLR (pt. 1389) 479; Ozaki v. State (1990) NWLR (Pt. 124) 92 at 98. He further submitted that these statutory provisions are in alignment with the constitutional principle encapsulated in Section 36(5) of the 1999 Constitution as amended. It is argued that the Nigeria Criminal jurisprudence puts the burden on the prosecution to prove that the appellant has committed a crime or illegal act i.e. misappropriation and conversion of the funds of the Ogori/Magongo Local Government Area which crime or illegal act has generated resources which the appellant has converted or transferred to his accounts with the aim of concealing or disguising the true or illicit origin thereof. The placement of the onus of explaining innocuous funds in his account, unrelated and untraceable to local government funds was a colossal error on the two lower Courts particularly the Court of Appeal.
Learned senior counsel maintained that the Money Laundering (Prohibition) Act 2004 and its successor legislations do not contain statutory exceptions as is the case in the UK counterpart legislations such as the English Proceeds of Crime Act (POCA). It is argued that none of the witnesses called by the prosecution established anything close to money laundering against the appellant and so the prosecution failed in its primary duty to prove the ingredients of the offence of money laundering against the appellant in the 75 counts.
In responding to the arguments of learned senior counsel for the appellant, Wahab Shittu Esq, learned counsel for the respondent submitted that the lower Court did not reverse the onus of proof placed on the prosecution to prove its case beyond reasonable doubt. He argued that a distinction should be drawn between the legal burden of proof beyond reasonable doubt which rests and stays with the prosecution in the criminal trial process, as opposed to the evidential burden of proof which constantly shifts from the prosecution to the defendant depending on where the pendulum of evidence swings in the proceedings, where civil or criminal. He said that if the totality of evidence led in the proceedings before the trial Court is examined, the prosecution proved its case beyond reasonable doubt.
He maintained that the prosecution placed sufficient evidence to prove the charge against the appellant beyond reasonable doubt as required by law and the onus shifted to the appellant to rebut the evidence presented by the prosecution and this did not translate to mean shifting of the burden of proof to the appellant. He gave an analogy that if in a given situation a huge lodgement of five billion Naira is found in the private account of a public officer whose total emoluments and entitlements during the period under reference should not exceed one Million Naira, it is the duty of the prosecution to show that the said Five Billion Naira was found in the private account of the said public officer within the given period and also tender relevant statement of account of the public officer in proof of the said questionable lodgements, using that premise to hold that the public officer had come about the huge difference in his account from laundered funds or dirty money arising from illicit transactions. It is the duty of the affected public officer to provide explanations to show that the said amount lawfully came into his possession through his legitimate earnings and emoluments. This duty of explanation will not translate to a shifting of the burden of proof from the prosecution to the defendant, it will only mean the shifting of the evidential burden as opposed to the legal burden on the defendant to satisfactorily explain how he came about the humongous amount found in his private account.
Learned counsel for the respondent argued that it was a highly misplaced submission by learned senior counsel in stating that it was wrong to shift the burden of proof from the prosecution to the appellant pointing out that since the appellant was standing trial for Money Laundering, the fact that he is in possession of pecuniary resources or property for which he cannot satisfactorily account and which is disproportionate to his own known sources of income, this may be proved and taken into consideration by the Court as corroborating the testimony of any witness in the trial and placed reliance for this submission on Section 19 of the Economic and Financial Crimes Commission (Establishment) Act 2004.
The whole of this case as I see it is built around this legal proposition enunciated by learned counsel for the respondent.
Sections 14 and 19(3) of the Money Laundering (Prohibition) Act provide as follows:-
“14(1) Any person who-
(a) converts or transfers resources or property derived directly or indirectly from illicit traffic in narcotic drugs or psychotropic substances or any illegal act, with the aim of either concealing or disguising the illicit origin of the resources or property, or aiding any person involved in the illicit traffic in narcotic drugs or psychotropic substances or any other crime or illegal act to evade the legal consequences of his action; or
(b) collaborates in concealing or disguising the genuine nature, origin, location, disposition, movement or ownership of the resources, property or rights thereto derived directly or indirectly from illicit traffic in narcotic drugs or psychotropic substances or any other crime or illegal act commits an offence under this section and is liable on conviction to imprisonment for a term of not less than two years or more than three years.
(2)Any person who commits an offence under Subsection (1) of this Section shall be subject to the penalty specified in that subsection notwithstanding that the various acts constituting the offence were committed in different countries or places.
19(3)In any trial for an offence under this Act, the fact that an accused person is in possession of pecuniary resources or property for which he cannot satisfactorily account and which is disproportionate to his known source of income, or that he had at or about the time of the alleged offence obtained an accretion to his pecuniary resources or property for which he cannot satisfactorily account, may be proved and may be taken into consideration by the Federal High Court as corroborating any of the witness in such trial”.
Money laundering is a global scourge that affects countries worldwide, Nigeria not being an exception. It has been described as the washing of illegitimate money in a bid to make it appear clean or legitimate. It involves the process of transforming the proceeds of crime into ostensibly legitimate money or other assets.
The growth in drug trade, human and drug trafficking developments in technology which facilitated the transfer of proceeds of trade in ways hitherto unknown among others brought the attention of government to this menace. The government then started a clampdown on this offence by establishing different policies and also joining various international bodies aimed at combating money laundering.
The EFFC was established in 2004. One of its primary functions is to investigate allegation of money laundering. It was to strengthen the EFFC to fulfill its mandate, that the 2004 Money Laundering (Prohibition) Act was passed. The Commission is invested with wide powers critical for carrying out this mandate, including the power to place bank accounts under surveillance and carry out other actions designed to assist investigators to identify the owners and locate the proceeds or properties derived from crimes, a power hitherto vested only in the National Drug Law Enforcement Agency (NDLEA).
Proving Money Laundering cases is a herculean task because it requires a prior establishment of the predicate offence before the money laundering aspect can be established. To obviate this problem a remedy was introduced by statutorily inferring money laundering from not only the conduct of the defendant but his lifestyle which is similar to the Proceeds of Crime Act 2002 of the UK. Even though Section 36(5) of the 1999 Constitution provides that every person charged with a criminal offence shall be presumed to be innocent until he is proven guilty, the proviso allows for shifting the burden of proof on the defendant. The Section provides thus:-
“36(5)Every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty provided that nothing in this Section shall invalidate any law by reason only that the law imposes upon any person the burden of proving particular facts”.
By Section 19(3) of the Money Laundering Act, if an accused person is in possession of pecuniary resources or property which is disproportionate to his known source of income, or he obtained an accretion to his pecuniary resources or property, the burden of giving a satisfactory account of how he made the money or obtained the accretion shifts to him. The prosecution is relieved of the burden of having to prove that the money so found in his account or in his possession is proceeds from illicit traffic in narcotic drugs or psychotropic substances or of any illegal act.
To explain the point further, where A is a fixed salary earner and suddenly his account is credited with an amount beyond his income or has property which his legitimate income cannot afford, the burden shifts to him to explain how he got the money with which he bought the property or the legitimate transaction he was engaged in for which the account was credited.
At the trial Court the prosecution called six witnesses and tendered several exhibits including investigation reports while the defence called seven witnesses. The appellant testified as DW7. PW1 stated that two petitions written by Ogori/Magongo Legislative Council and Voice of Ogori/Magongo Local Government Area Home and Diaspora alleging fraudulent practices against the appellant and Hon. Albert Soje Adesina addressed to the chairman of EFCC referred to his section for investigation. In the course of the investigations two letters were written to UBA and Oceanic Bank. The letter to the UBA requested for the statement of account of the Local Government Council and the statement of account of the 1st accused/appellant while the letter to Oceanic bank requesting for the statement of the 1st accused. During the investigation, one of the contractors Adamu Abbah was found to have been paid through the Local Government Account at UBA. Two payments were made to him i.e. N1.6 million and N2 million by cheque. These two cheques were cleared by Adamu Abbah through his First bank account. After clearing, the same Adamu Abbah issued cheque of N2 million to his son, Asi Abbah who cashed the cheque at First Bank and paid cash into the 1st accuseds account in Oceanic Bank in three tellers of N800,000.00, N800,000.00 and N400,000.00 the same day through teller. There were other payments which were made into the Oceanic Bank account by the 1st accused and other people including one Louis Onifade a Council Official Staff. On 4th December, 2008, 1st accused paid the sum of N3.2 million into the account by cheque and on 5th December, 2008 he made payments of N9.2 million also through a cheque and N4.2 million. In the month of June, 2009 he paid in a cheque of N5 million by himself.
One of the witnesses, Louis Olufade testified as Dw3. In his evidence, he stated that the 1st accused was a businessman and a politician. He was into the business of dealership in fairly used vehicles. He DW3 was the person who managed the sales of the vehicles. He sold the cars and undertook banking transactions on behalf of the 1st accused. He also knew Adamu Abbah. He too is into sales of cars. He said they were keeping some of their cars in Adamu Abbah’s car stand in Jos. After 1st accused became chairman of Ogori/Magongo in 2004, he (PW3) started handling the business and he used to pay in money into 1st accused account in Oceanic Bank, UBA and Zenith Bank Plc.
Answering questions under cross-examination DW3 said:-
On 1st May, 2007 I deposited N2,350,000.00 into the personal account of the 1st accused person. I believe that the money came from the contract where we were refurbishing the National Library at Enugu. I do not have any evidence for this. On 13 February, 2007 I also deposited N900,000.00 into the personal account of the 1st accused person. The amount was for car sales. On 28 March I deposited N900,000.00. There are proceeds from the sales of vehicles. I do not have any evidence for this. On the same 29 March, 2008 I deposited another N900,000.00 and another N200,000.00 on 22 May, 2008. These transactions can be found in Exhibit PW1- E1. It is not correct to say that I was assisting the 1st accused person in laundering looted fund. The name of the Company we used for the car business is Chief Adamu Abbah Motors. The lodgments of 28 March, 2008 as well as that of 22 May, 2008 were made when the 1st accused person was serving as Chairman of Ogori/Magongo Local Government. I do not know that Chief Adamu Abbah with whom I was doing business was a contractor of Ogori/Magongo Local Government.
The 1st accused/appellant who testified as DW7 stated:-
I did not award contract to Adamu Abbah on phone as stated by the prosecution. During my tenure as the caretaker/chairman, we used to enhance internally generated revenue (IGR) of the Local Government. In one of the Council meetings we took a decision to boost the (IGR) by acquiring buses. At that time the Local Government did not have money to pay for such purchase and therefore we could not advertise the bidding so we call (sic) for bids by placing notices on our Notice Board. At that time too the Local Government did not have a Tenders Committee. The F and GPC was the body that took decision then, since we did not give mobilization for supplies, suppliers were generally not interested. It was at this point that notification went out across the Local Government and Adamu Abbah showed interest and was ready to supply these buses pending when the Local Government was able to pay. He was awarded the contract to supply two buses which he did. They were fairly used buses at the rate of N3.6 million each. He was paid by instalments after supplies.
He had earlier identified Exhibits DW3-A, C, D and E which are evidence of sales agreement and change of ownership for a vehicle sold by Adamu Abbah. He said Olufade took over the business when he was appointed caretaker chairman in 2008. He said there were some vehicles under Olufades care which he sold and remitted the payments into his (1st accused) account and that every other payment that Olufade made was from his (1st accused’s) income. He gave his income in the Local Government as consisting of his salary which was between N450,000.00 and N550,000.00 travelling allowance per day depending on the destination was between N25,000.00 and N50,000.00 security vote N1 million per month; furniture allowance which is N1.5 million when he was caretaker chairman and N2.4 million as an Executive chairman. He was entitled to entertainment allowance. He said that monies paid into his account by Olufade were within his means. Exhibits D14-D17 were tendered for Chairmans security vote dated 14 January, 2008, D15 (other charges dated 31 March, 2009) D16 (salaries and wages dated 28 February, 2008) and D17 Salaries and Wages dated 30 September, 2010).
1st accused also tendered Exhibits DW7-P; DW7-Q; DW7-R and DW7-S which are security vote of Local Government Chairman dated 14 January, 2008; other charges dated 31 March, 2009, Salaries and Wages dated 28 February, 2008 Salaries and Wages dated 30 September, 2010 respectively.
The learned trial Judge evaluated the evidence adduced by the prosecution and defence and found that there is no issue or allegation of illicit traffic in narcotic drugs or psychotropic substances in any of the counts in the charge and what the prosecution established is the fact of cash lodgements from undisclosed origin into the private bank account of the 1st defendant either in person or by using proxies during the time he was the caretaker chairman or Executive chairman of the Ogori/Magongo Local Government council there by leading to the conclusion that there is an intention to conceal the illicit origin of the cash in question. He then analysed the evidence of the defence witnesses 1-7 and the documentary evidence they tendered to rebut the prosecution against the 1st defendant and found at page 1575-1576 vol. 11 of the records:-
Looking at the evidence of these witnesses, the only evidence which DW1 gave was in respect of the statement of account of Ogori/Mogongo Local government Area between 1st May and June 30 2009 in Skye Bank Plc was Exhibit DW1-A, DW2 from Zenith Bank Plc tendered the statement of account of the 1st Defendant (Exhibit DW2-A) and acknowledged the lodgment of N5,000,000.00 (Five Million Naira) only therein, DW3 testified of how he paid in money into the 1st Defendants accounts in Oceanic Bank Plc, UBA Plc and Zenith Bank Plc which DW3 claims were proceeds from sales in the second hand car business of the 1st defendant.
DW3 sounded credible until cross-examination. It is my finding that the evidence of DW3 was discredited during cross-examination when he acknowledged the lodgments he made into the personal bank accounts of the 1st Defendant in Exhibit PW1-E1, that is on 13 February, 2007, N900,000.00. On 28 March, 2008, N900,000.00 and another N200,000.00 on May, 2008. Upon scrutiny, I am unable to find any inherent feature which authenticates the Exhibits tendered by DW3. I am minded to say that these documents are bereft of any evidential values and I so hold. Furthermore, DW3 testified that he was later employed by the 1st Defendant as Supervisor in the Local Government. With the kind of relationship existing between the 1st Defendant and DW3, the credibility of his testimony is evidently tainted and cannot be believed……… DW5 tendered various documents to found that the various lodgments he made into the bank accounts of the 1st Defendant which according to him are from legitimate business. He became inconsistent during cross-examination and made this Court to doubt his veracity. DW6 who says he was Head of Department (H.O.D) Works of Ogori/Magongo Local Government Council from September, 2008 to August, 2011, member of Tenders Board and a member of Finance and General Purpose Committee (F & GPC) He gave evidence on the projects executed during his tenure as(H.O.D Works). During cross-examination he said he knew nothing about the various lodgments into the personal bank accounts of the 1st Defendant when confronted with the facts therefore.
DW7 (1st Defendant) gave a very long testimony. He used Exhibits DW-7D, DW7-D1, DW7-2, DW7-E, DW7-F, DW7-G, DW7-H, DW7-I, DW7-J, DW7-K, DW7-L DW7-M, DW7-N, DW7-O, DW7-P, DW7-Q, DW7-R, and DW7-S to justify his actions concerning the intervention Funds and Bank Loans taken by the Local Government during his tenure. In the opinion of this Court, the shortfall in the oral testimony and documentary evidence of DW7 is that they fail to address the lodgments in count 3.
The findings of the learned trial judge went to the credibility of witnesses. An appellate Court cannot interfere with such findings unless they are shown to be perverse. See: Lagga v. Sarhuna (2008) 16 NWLR (Pt. 1114) 427; Agbakoba v. I.N.E.C (2008) 18 NWLR (Pt.1119) 489. There is no appeal against the findings made by the learned trial Judge and so the conclusion reached by the learned trial Judge that the oral testimony and documentary evidence of DW7 failed to address the lodgments in count 3 stands. The appellant therefore failed to give a satisfactory account of the monies which were lodged into his accounts between 2008 – 2011 when he was the Chairman of Ogori/Magongo Local Government.
Issues 3 and 4 are resolved against the appellant.
Issue 5 deals with whether the Court below was correct to affirm the decision of the trial Court that all the uncertified documents and Bank generated documents are admissible in evidence. Learned senior counsel argued that the appellant objected to the admissibility of all the documents that were tendered at the Federal High Court both at the time of tendering and at the address stage. He said the trial Judge refused to expunge the documents emanating from the Ogori/Magongo Local Government Area in respect of Committee meetings, award and execution of contracts and computer generated documents such as bank statements. He said the documents were certified by the EFCC and not the Local Government concerned or the Banks in issue in accordance with the provisions of the Evidence Act. He submitted that the wrongful admission of these documents was appealed against in the Court below. He submitted that the certification of public documents must be done by the department or officer in custody of the original and not any other body who is not the issuing authority.
On the bank-generated documents admitted by the trial Court and affirmed by the Court of Appeal, it is the Evidence Act 2011 that should guide their admissibility and not what the law was at the time the charge was filed.
Learned counsel for the respondent submitted that exhibits PW1G, PWJ, PWJ1, PWJ3, PWJ4 and PW1L which were obtained from the Ogori/Magongo Local Government council were discountenanced by the trial Court and their non-certification by the appropriate authority did not affect the outcome of the case as the conviction of the appellant was not based on them.
Let me state straightaway that it is the substantive law in operation at the time an offence is said to have been committed that has to be referred to when a person is being charged to Court. Thus if a person is charged with offence of Money laundering in 2010, it must be the Money Laundering Act as at 2010 that will be used and not the Money Laundering Act at the time he is finally arraigned for trial in Court but the procedural law to be used would be the current one. Thus if the Evidence Act or the criminal procedure Law has been amended or replaced and a new one is in place at the time of trial, it is the amended or newly enacted Evidence Act/Criminal Procedure code that will be used to guide the trial. Thus it is the Evidence Act 2011 that will be used in the trial or appeal taking place in 2018 notwithstanding that the offence was committed in 2008. The accused will however be charged with the criminal offence as contained in the Criminal law in 2008.
Learned Senior counsel for the appellant argued that the documents which were tendered in Court were secondary evidence which were not certified by the Ogori/Magongo Local Government Council but by the EFCC but the trial Court ruled that the documents which emanated from Ogori/Magongo Local Government Council were discountenanced by the Court and if that is so, the appellant has suffered no injury since the said documents were not considered when the offence was proved.
It is not the law as stated by the learned trial Judge that since the charge was filed on 31 March 2010, the Evidence Act 2011 will not apply because the law does not have retrospective effect. That statement only applies to substantive and not adjectival or procedural law. See: Federal Republic of Nigeria v. Mike (2014) 1 SC (Pt.1) 27.
Learned counsel for the appellant attacked the admissibility of exhibits PW1-C2, PW1-CS, PW1-D1, PW1-E2, PW1-F, PW1-G, PW1-J, PW1-J1, PW1-12, PW1-J3, PW1-J4 and PW1-L which were recovered in the course of investigation. I agree with the learned trial judge that the custody of any document recovered in the course of investigation belongs to the body statutorily or constitutionally empowered to possess such documents upon recovery and their admissibility is determined by how relevant they are to the proceedings. At the end of the day it is the weight to be attached to such recovered evidence that should engage the mind of counsel. See: Nwabuoku v. Onwordi (2006) LPELR SC.344/2001; (2006) 5 SC. (Pt. II) 103; Musa Abubakar v. E.l Chuks (2007) 18 NWLR (Pt.1066) 386.
The last argument of learned counsel for the appellant is that the computer generated documents did not comply with the mandatory provisions of Section 84(1)(2) and (4) of the Evidence Act before they were admitted in Evidence and therefore should be expunged from the records. Learned counsel argued that the statement of accounts exhibits PW1C2, PW1D1, PW1E2 and PW1F1 from UBA, Oceanic Bank, First Bank and Zenith Bank are caught by the admissibility requirements of Section 84 of the Evidence Act 2011.
Section 84(1) (2) and (4) of the Evidence Act 2011 states:-
84(1) In any proceeding a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Subsection (2) of this Section are satisfied in relation to the statement and computer in question.
(2) The conditions referred to in Subsection (1) of this Section are:-
(a) that the document containing the statement was used regularly to store or process information for the purposes of any activities regularly carried out over that period, whether for profit or not, by anybody, whether corporate or not, or by an individual;
(b)that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived.
(c) that throughout the material part of that period the computer was operating properly or if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents and
(d) that the information contained in the statement reproduced or is derived from information supplied to the computer in the ordinary course of those activities;
(4)In any proceeding where it is desired to give a statement in evidence by virtue of this Section a certificate –
(a)identifying the document containing the statement and describing the manner in which it was produced.
(b)giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by the computer.
(i) dealing with any of the matters to which the conditions mentioned in Subsection (2) above relate; and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate; and for the purpose of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.”
There is no doubt that the documents are computer generated which the E.F.C.C. got from the various banks during investigation. It is therefore presumed that before the banks surrendered them to the E.F.C.C., they must have certified that the contents of the statement of accounts contained therein were correct. Even the appellant relied on the contents of the documents for his defence. The lower Court pointed out that the appellant cannot approbate and reprobate. He cannot rely on the documents for his defence and at the same time ask that they be expunged from the records. The documents sought to be expunged were found to have been duly certified.
I find no merit in this appeal and it is accordingly dismissed.
I find that the prosecution made out a case under Section 19(3) of the Money Laundering (Prohibition) Act 2004 since there was proof supplied by the defence that the appellant was in possession of pecuniary resources which are disproportionate to his known source of income which he could not satisfactorily account for.
Appeal is accordingly dismissed.
MARY UKAEGO PETER-ODILI, J.S.C.: I am in agreement with the judgment and reasoning therefrom just delivered by my learned brother, Kumai Bayang Aka’ahs, JSC and to register that support, I shall make some remarks.
This is an appeal from the judgment of the Abuja Division of the Court of Appeal or Court below delivered on the 1st day of March 2017, Coram: A. D. Yahaya, Tani Hassan, M. Mustapha JJCA in which the Court below affirmed the decision of the Lokoja Division of the Federal High Court presided over by I. E. Ekwo J. wherein the appellant was found guilty, convicted and sentenced to a term of 2 years imprisonment per count on 75 out of the 210 counts in the final Amended Charge.
The background facts of the case are well set out in the lead judgment and there is no need repeating them here except for when the occasion for a reference thereof is called for.
On the 1st day of November, 2017 date of hearing, J. B. Daudu, SAN and E. C. Ukala, SAN of counsel for the appellant adopted the appellant’s brief of argument filed on the 9th of June, 2017 and deemed filed on the 6th of July, 2107. In it were raised five issues for determination which are thus:-
1. Whether the Court of Appeal was right or correct in law to have in one breadth refused/struck out the respondent’s preliminary objection and immediately thereafter to consider the same objection as issues being raised by the same Court suo motu before striking out the appellant’s issues 3, 4, 6 and 7 which were predicated on grounds 4, 5, 8, 9 and 10 of the Notice of Appeal? (Issue No. 1) [Ground 2 of the Notice of Appeal].
2. Whether on the merit the Court below was correct in eliminating issues 3, 4, 6, and 7 from the case of the appellant? (Issues No 2) [Ground 3, 4 and 5 of the Notice of Appeal].
3. Whether the Court of Appeal was right or correct in law when it affirmed the decision of the Federal High Court placing the onus of proving his innocence in the 75 counts of money laundering on the appellant? (Issue No 3) [Grounds 6 and 7 of the Notice of Appeal].
4. Whether the Court of Appeal was correct in law when it affirmed the decision of the Federal High Court that the prosecution had established all the ingredients of the offence of money laundering against the appellant? (Issue No 4) [Grounds 1 and 8 of the Notice of Appeal].
5. Whether the Court below was correct in law in affirming the decision of the FHC that all the uncertified documents and bank generated documents are admissible in evidence and if answered in the negative what is the effect of their expurgation from the case? (Issue No 5) [Ground 9, 10, 11 and 12].
Learned counsel for the respondent, Wahab Shittu, Esq. adopted its brief of argument filed on 21st July, 2017 and utilized the issues as raised by the appellant.
The appellant through counsel had adopted his reply brief of argument filed on 4th August, 2017.
The issues as crafted are good enough for me in the determination of this appeal and I shall make use of them.
ISSUES 1 AND 2
These question the correctness of the act of the Court of Appeal in striking out the respondent’s Preliminary Objection and going on to consider the same objection in striking out issues 3, 4, 6 and 7 of the appellant.
Advancing the position of the appellant, learned senior counsel stated that the Court below erred when in one breath it dismissed the preliminary objection for incompetence and in another breath proceeded to deal with the same objections suo motu and on that note struck out all the grounds associated with issues 3, 5, 6 and 7 of the appellant’s brief of argument.
That having disposed of the Preliminary objections the Court of Appeal lacked the vires to reconsider the same objections albeit suo motu. He cited the case of Dinginyadi & Anor v. I.N.E.C. (2011) 14 NWLR (Pt. 1255) 347 at 393 per Adekeye, JSC, Ekwiola v. C.B.N. & Anor (2013) 15 NWLR (Pt. 1377) 234 at 262.
He contended that there is no need to ask for leave of the Court of Appeal or Supreme Court before bringing up a point of jurisdiction for the first time on appeal. He cited Obiakor & Anor v. The State (2002) 10 NWLR (Pt. 776) 612 at 626.
That the matter of the validity of a Court process not signed by an enrolled legal practitioner has been settled by this Court in Okafor v. Nweke (2007) 3 SCNJ 185 AT 191; S.L.B. Consortium Ltd v. N.N.P.C. (2011) 4 SCNJ 211 at 221-223; F.B.N. Plc & Ors v. Maiwada & Ors (2012) LPELR (SC) 204-2012.
That the issue before the Court below was a question of law. That the Court below failed to consider and determine the appellant’s complaint that the purported offences or Counts in the charges were lumped together and the appellant prejudiced and misled on account of the 208 counts and the provisions of Section 156 of the Criminal Procedures Act and principles of fair hearing breached the trial Court on duplicity of the 208 counts.
Mr. Wahab Shittu of counsel for the respondent submitted that the lower Court effectively disposed of the issues raised in the Preliminary Objection and struck out the Objection and in doing so gave the reasons for so doing. He cited Agbanelo v. U.B.N. (2000) 7 NWLR (Pt. 666) 534 at 557.
That the fact that the Court had dealt with the Preliminary Objection did not preclude it from examining the merits of the same suit in the same proceedings. He referred to Orhiommwon LG v. Ogieva (1993) 4 NWLR (Pt. 288) 469 at 480; Senate President v. Nzeribe (2004) 9 NWLR (Pt. 878) 251 at 274.
The stance espoused by the appellant is that the Court of Appeal having misapprehended the compliant of the appellant about the striking out of the 133 grounds by the trial Court on account of defect based on duplicity failed to see that the said situation afflicted the remaining 75 counts that were used in convicting him. That the Court below had not considered appellants complaints that the purported offences or counts in the charges were lumped together and the right to fair hearing of the appellant compromised since he was prejudiced and misled on the duplications nature of 208 counts contrary to Section 156 of Criminal Procedure Act.
The position of the respondent is that the powers exercised by the Court of Appeal were in line with the general powers of that Court as enshrined under Section 15 of the Court of Appeal Act.
The Federal High Court per Ekwo J stated as follows:-
“On count 39, on the 4th of July, 2008 as reflected in the same EXHIBIT PW1-E1, the prosecution adduced evidence that there was a cash deposit of the sum of N400.000.00 by one Abbah into the 1st Defendant’s Oceanic Account No. 0291001004790 and 0791001007103 at IBB Way. The source of the transaction leading to deposit into the Defendant’s account is unknown and the factual situation reflects laundered funds by the 1st Defendant. The first defendant did not explain the source of the transaction that gave rise to this deposit and how he came about the money leading to irrefutable conclusion that the amount involved was converted by the 1st Defendant. This is corroborated by EXHIBITS PW1-C, PW1-C2, PW1-D1, PW1-C5, PW1-E1 and PW1-E2 that Abbah is the son of Adamu Abbah and it was the money withdrawn from Adamu Abbah’s account that was lodged into the 1st Defendants personal account.”
In all said findings, the common hallmark are as follows:
(i) The source of the transaction leading to into the deposit the Defendants bank account is unknown.
(ii) That the factual situation, (which was not identified or disclosed by the trial Court) reflects laundered funds by the Appellant.
(iii) That the 1st Defendant did not explain the source of the transaction that gave rise to this deposit and how he came about the money leading to irrefutable conclusion that the amount involved was converted by the 1st Defendant.
(iv) That the irresistible conclusion from the foregoing is that the amount involved was converted by the 1st Defendant.
The Federal High Court made many other findings and conclusion in the course of, with respect its needlessly marathon judgment to the effect that the onus fell squarely on the Appellant’s shoulders to establish the lawfulness or legality of each and every lodgement he made into his accounts thus reversing the time honoured rule that the burden of proof in criminal matters of this nature lies on the prosecution. Even the latter i.e. Prosecution was complicit in leading or urging the Court below and trial Court to convict the appellant on purely speculative and baseless evidence. My Lords, we respectfully refer to three excerpts of the respondent’s submission in its brief of argument, which demonstrates beyond a shadow of doubt that there was no scintilla of evidence brought by the prosecution to substantiate any or all of the ingredients of money laundering for which the appellant was standing trial;
see: page 1762: On the 18th of December 2008, there was another illegal cash withdrawal by the appellant of the sum of N10,600.000.00 and another illegal cash withdrawal of N11,600.000.00 all from the intervention fund”.
The Court below per Hassan, JCA stated thus:-
“The allegations in the 75 counts against the appellants deal with conversion of the property of Ogori/Magongo Local Government Council Kogi State with intent to concealing its illicit origin contrary to Section
14(1)(a) of the Money Laundering (Prohibition) Act 2004 punishable under Section 14 of the same Act.”
The Court below engaged the next assignment which was to identify the ingredients of the offence and determine the complaint by the appellant one way or the other that the prosecution did not establish any of the ingredients against him. The Court below at page 1824 opined as follows:
“Page 1824: To sustain a conviction under Section 14(1) of the Money Laundering (Prohibition) Act, 2004, the respondent must prove the following ingredients against the appellant.
That Appellant converted or transferred resources.
That the resources in question are derived from illicit traffic in narcotic drugs or any other crime or illegal acts.
The conversion or transfer was done purposely to conceal or disguised the illicit origin of the resources.
In this case, it is clear that allegations of Money Laundering are premised on conversion of resources derived directly or indirectly from illegal act. The presumption of innocence is a hallowed principle lying at the heart of criminal law. It ensures that until the defendant’s guilt is proved beyond reasonable doubt, he or she is innocent. This is essential in commitment to fairness and justice.”
Going on further, the learned Justice of the Court below stated thus:-
“I have painstakingly gone through the evidence on record of the facts of conversion on the undisclosed origin of the payment giving rise to several lodgements into the private accounts of the appellant”. See also page 1823 of the printed record where the Court below found that it was alleged that the appellant as executive Chairman of Ogori/Magongo Local Government of Kogi State misappropriated the sum of three hundred and twenty million naira intervention fund released to the local government in October 2008 and in typical E.F.C.C. vocabulary ‘looted millions of Naira belonging to Ogori/Magongo Local Government, inflation of contracts and squandering of loan obtained in the name of the local government from UBA.”
The Court of Appeal went on to state its further findings as follows:-
“It is the tangible terms of enactments that would define the practical items or ingredients of actions or inactions that would constitute any offence prescribed in the provision. Going by the analysis of the learned silk of counsel for the 1st Defendant on the requirements of the provision, it is important to say that the universal definition of conversion is “the act of changing from one form to another or the process of being exchanged”, see Bryan Garner, Black’s Law Dictionary, 8th ed.P.201. In this case the aim of the conversion is either to conceal or disguise the illicit origin of the resources or property. Therefore, once the actus reus is established it would form the basis for conclusion on the existence of the mens rea. The ageless issue in establishing mens rea, is that a physical surgery to open the heart of an accused to see his intention is impracticable. It is therefore established where there is admission on the part of the accused or inferred from the evidence constituting the actus reus. In this case, I have to agree with the Prosecution that the facts of conversion have been consistent in each and every count in being emphatic about the undisclosed origin of the transaction or payment giving rise to the several cash lodgements into the private bank accounts of the 1st Defendant either in person or by using proxies thereby leading to the conclusion that there is intention to conceal the illicit origin of the cash in question. See also page 1579: Now, going by the tenor of the relevant counts in the charge sheet, what the 1st Defendant needed to concentrate all his arsenal on was to rebut the allegation in each count so as to cast doubt on the case of the Prosecution knowing that such doubts are normally resolved in favour of the defendant in criminal trials. This never happened.”
The appellant had also raised his concern that the grounds for which the Preliminary Objection was despatched was later used by the Court of Appeal in its consideration of the issues before it. That posture is not borne out of what transpired as showcased by the record as what the Court below did in giving reasons for its findings and conclusions in the issues raised may have looked like a revisit to the Preliminary Objection and its related features, that did not remove the right of the Court to state its reasons for the determination in the main appeal however similar those reasons may appear as the ones in the Preliminary Objection earlier struck out. This Court had in the case of Agbanelo v. U.B.N. (2000) 7 NWLR (Pt. 666) 534 at 557 per Karibi-Whyte, JSC stated that it is an elementary and essential ingredient of the judicial function that reasons are to be given for decisions. That it is crucial or important where appeals lie from the decisions and it is to be said that the reasons for decisions enable the determination on appeal whether the decision was merely initiative and arbitrary or whether it is consistent with established applicable principles. It has to be stated and emphatically too that if a judgment is delivered without supporting reasons it is an irritation or arbitrariness, a rule akin to tossing the coin and whatever side shows up is the decision, a situation that would likely produce in judicially anarchy. The point has to be made that a judgment will not set aside just because the reasons given were bad if the judgment itself is right.
Indeed from what the record shows, the Court below stated its reasons and how it came by the findings and decisions it arrived at and I dare say elaborately too, it cannot be properly posited that the Court below gave its decision without reasons. See excerpts of that decision as shown below, thus:-
“The grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. Grounds of appeal are formulated in nubibus. They must arise from a judgment otherwise they are baseless and liable to be struck out – Akeredolu v Mimiko (2014) 1 NWLR (Pt.1388) 402 at 420. See also @ (2011) 1 NWLR (Pt.1269) 145.
From the record there are no findings by the trial Court that the amended charge of 30th October, 2015 and final written address filed on 3rd December, 2015 were not signed by a Legal Practitioners Act, 2004. Issue 3 of the appellant is abstract in nature and has been raised on non-existing premise. It has no nexus with the ratio decidendi of the trial’s Court decision in this matter. Ground 4 and 5 of the appellant upon which the issue was formulated are incompetent.
The appellant appeared to suggest by his argument that the grounds questioned the issues of jurisdiction. The submission with respect is misplaced and misconceived as it is founded on false premise of the record. Issue 3 is introduced to divert attention from the main issues in this appeal and so it is liable to be struck out. Ground 4 and 5 and issue 3 of the appellant are struck out for being incompetent.”
Grounds 8 and 10 question findings of facts on exercise of discretion by the trial Court a ground of appeal challenging the exercise of discretion of the Court is a ground of mixed law and facts which requires leave before it is filed. See FBN v. Abraham (2008) 18 NWLR (Pt.1118) 172, and failure to obtain leave pursuant to Section 242(1) of the 1999 Constitution of Nigeria (as amended) renders the grounds incompetent and liable to be struck out. Grounds 8 and 10 are therefore struck out.
Issues 5 and 7 formulated therefrom are also struck out.”
In the light of the separate reasons adduced by the Court below for dismissing the preliminary objection on one hand and issues 3, 5, 6, and 7 in the main appeal as clearly stated above, it will be misleading for learned silk to attempt to lump the two separate/independent proceedings together and give impression that the Lower Court treated the separate proceedings as holistic proceedings in the circumstance.
The Lower Court is entitled to independently consider issues raised in the appeal independent of issues raised in the preliminary objection and pronounce separately on them in the efficient and effective manner it carried out the exercise, more so, when circumstances and situation given rise to the two separate/independent proceedings are not similar and the reasons for the treatment of each of the two situations were clearly different. Learned silk therefore missed the point and the distinguishing features when he submitted thus: “having disposed of the PO, the Court below lacked the vires to re-consider the same objections, albeit suo motu.”
I agree with learned counsel for the respondent that the Court of Appeal rightly utilised its powers under Section 15 of the Court of Appeal Act in striking out those, the Issues 3, 5, 6 and 7.
For effect I shall cite the same statutory provision.
The Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorised to make or grant and may direct any necessary inquires or accounts to be made or taken, and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may rehear the case in whole or in part or may remit it to the Court below for the purposes of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction”.
From the foregoing it is clear that the two issues are resolved against the appellant.
ISSUES 3 & 4
Learned Senior Advocate for the appellant contended that on whether the Court of Appeal was correct in law when it affirmed the decision of the Federal High Court placing the onus of proving his innocence in the 75 counts of money laundering on the appellant, the prosecution had established all the ingredients of the offence against the appellant? He stated that the Federal High Court had laid the onus of proof on the appellant and in so doing reversed the time-honoured rule that the burden of proof is criminal matters of this nature lies on the prosecution. In this, the Court of Appeal got it wrong by affirming what the trial Court did. He referred to Sections 131, 132 and 135 of the Evidence Act, 2011; Egbirika v. State (2014) 4 NWLR (Pt.1398) 5s8 at 562; Kalu v FRN (2014) 1 NWLR (Pt.1389) 179; Ozaki v State (1990) NWLR (Pt.124) 92 at 98; Woolmington v DPP (1935) A.C. 462 e.t.c.
Learned SAN went on to submit that the prosecution failed to establish the essential elements of the offence beyond reasonable doubts. He cited Alabi v State (1993) 7 NWLR (Pt.307) 511 at 523; George v FRN (2014) 9 NWLR (pt.1399) 1 at 25.
Responding, learned counsel for the respondent submitted that there is a distinction between the legal burden of proof beyond reasonable doubts which rests and stays with the prosecution in the criminal trial process as opposed to the evidential burden of proof which constantly shifts from the prosecution to the defendant depending on where the pendulum of evidence swings in the proceedings whether civil or criminal. He cited Odunukwe v Ofomata (1999) 6 NWLR (Pt.607) 416 at 425; that learned silk on the other side may have failed to appreciate the evaluation of the totality of evidence led in the proceedings including oral testimonies of witnesses, strength of evidence, extracted during cross-examination and legally admissible evidential materials from the printed records of proceedings. He cited Nasamu v State (1979) 6-9 SC 153 at 159; Ogunleye v Oni (1990) 2 NWLR (Pt.135) 745; Amadi v Nwosu (1992) 5 NWLR (Pt.241) 273-280; Sule v The State (1987) 4 NWLR (Pt. 67) 709.
That the prosecution demonstrated through direct evidence and circumstantial evidence including inferences, a very strong linkage between the proceeds and the alleged offence in the Court from which they are derived leading to the irresistible conclusion that the appellant indeed laundered the funds as reflected in the counts. That the proof beyond reasonable doubt was made out. He referred to Adeniji v. The State (2001) 25 WRN 117 at 123 e.t.c.
The stance of the appellant is that the Court below shifted the burden of proof in a criminal trial to the appellant to prove his innocence instead of what is statutorily provided for the prosecution respondent to prove the guilt of the accused beyond reasonable doubt. Of a fact is that the onus or burden of such proof in a criminal trial such as this is on the prosecution to establish the ingredients of the offence beyond reasonable doubt and when the prosecution has done that and in so doing so once the prosecution having placed sufficient evidence on the guilt of the appellant either by direct or circumstantial or presumptive evidence beyond reasonable doubt required by law. At that stage the onus is on the accused appellant to attack or rebut the evidence so presented by the prosecution by a contrary to what the prosecution has laid out. That is not tantamount to shifting the burden on the appellant to prove his innocence. See Adeniji v The State (2001) 25 WRN; Uwe Idighi Esai & Ors v The State (1976) 11 SC 39; Peter Nwachuckwu Eze v State (1976) 1 SC 125.
The above position of the Court is strengthened by the provisions of Section 19(5) of the Economic and Financial Crimes Commission (Establishment) Act 2004 which stipulates thus:-
“In any trial for an offence under this Act, the fact that an accused person is in possession of pecuniary resources or property for which he cannot satisfactorily account and which is disproportionate to his known sources of income, of that he had at or about the time of the alleged offence obtained an accreditation to his pecuniary resources or property for which he cannot satisfactorily account, may be proved and taken into consideration by the Court as corroborating the testimony of any witness in the trial”. See further (Section 19(2) of the MLA Act 2004 for similar provision).
Explaining the evidential burden of proof, Fidelis Nwadialo learned author of “Modern Nigerian Law of Evidence” second edition page 401-402 stated the legal position as follows:
“Incidence of evidential burden of proof. This is the burden of adducing evidence to prove or disprove a particular fact. When a party wishes the Court to believe any fact, then the burden of proof as to that fact rests on that party. The party bearing the legal burden of proof must first make out a prima facie case in his favour. This means that he has to adduce enough evidence which, if believed, may reasonably justify a finding that the facts he seeks to prove exist. But whether this burden has been discharged cannot be known until at the end of the trial and the Court actually gives a verdict in his favour. If the Court disbelieves his evidence then the burden is not discharged. However, making out such a case he has discharged the evidential burden cast on him because he has tendered the evidence basically necessary for the establishment of this case. It then becomes necessary for his opponent to call contrary evidence to challenge the case set up by the party. By the necessity to adduce this contrary evidence, the evidential burden of proof is shifted unto the opponent. Of course he is not bound to supply any evidence at all. But by so doing, he runs a great risk of the Court finding against in denial of allegations of the allegations of the other party. The position is very well clarified by Denning J (as he then was) in Dunn v Dunn which was a petition for divorce on ground of desertion. “The legal burden” in the case, he states-
“was on the petitioner to prove that his wife deserted him without cause. In order to discharge that burden the petitioner relied on that fact that he asked her to join him and she refused. That is a fact from which the Court might have inferred that she had deserted him without cause, but it is not bound to do so, once he proves the fact of refusal she might seek to rebut the inference of desertion by proving that she had just cause for her refusal and, indeed, it is usually wise for her to do so. But there is no legal burden on her to that effect. Even if she did not affirmatively prove just because the Court had still at the end of the case, to ask itself, has the legal burden been discharged? In most cases, the party on whom the legal burden lies also bears the evidential burden at the outset of the trial for he has first to introduce evidence to establish a prima facie case: On the issue of incidence of evidential burden of proof, somewhat different considerations apply to the two types of proceedings, civil and criminal”.
Following in the path of this guide as expatiated, the Court of trial stated thus:-
“Now going by the tenor of the relevant counts in the charge sheet, what the Appellant needed to concentrate all his arsenal on was to rebut the allegations in each count so as to cast doubt on the case of the Prosecution knowing that such doubts are normally resolved in favour of the defendant in criminal trials. This never happened before”.
In this regard the concurrent findings of fact of the Court below cannot be faulted as the appellant did not push across any perversity in those findings nor any wrong application of the law and so this Court is loath to go like an elephant in a tea shop pushing down everything in its wake all in an effort to find a lapse in those findings of the two Court below that are just not there. Therefore the option open to this Court is to let alone those findings of facts based on what was placed before those Court and the sound reasoning those Courts deposited thereafter.
These two issues 3 and 4 are also resolved against the appellant.
This raises the question whether the Court below was right in affirming the decision of the trial Court that all the uncertified documents and bank generated documents are admissible in evidence and if the answer is in the negative, what is the effect of their expurgation from the case.
Learned counsel for the appellant submitted that the law is that certification of public documents or officer in custody of the original and not any other body who is not the issuing authority and so when the reverse was done in this case, the trial Court erred and the Court below ought to have departed from that stance as the admitted documents were clearly inadmissible. He cited Goodwill & Trust Ltd v Witt & Bush Ltd (2011) ALL FWLR (Pt.576) 517.
That at the time all the computer generated documents were admitted in evidence, it was the Evidence Act 2011 that was in force as 2004 version which had been repealed and so the trial Court was in grave error when it failed to expunge all the disrupted documents that were so tainted.
Learned counsel for the respondent submitted that the bank statement obtained in the course of investigating of EFCC being documents arising from the ordinary course of business is entitled to deliver such copies as custodian of same within the meaning and intendment of Section 104(3) of the Evidence Act.
He referred to Section 104 (1) (2) (3) of the Evidence Act Tabik Investment Ltd v GTB Plc (2011) ALL FWLR (Pt. 602) 1592; NBA v Kalejaiye (2016) 6 NWLR (Pt. 1508) 393 at 399; Narvidex Limited v N.I.M.B. Limited (2001) 4 SCNJ 208 e.t,c.
In this respect the Court below stated thus:-
“In referring to EXHIBITS PW1B, PW6A AND PW6B, the submission of the Appellant was exhibit PW6A and PW6B tendered and unsigned, thus worthless and inadmissible. That the exhibits PW6A and PW6B tendered by PW6 is documentary hearsay. Exhibits PW1B is the petition against the appellant. It is incorrect to say that the document was not signed. The documents was duly signed by the president, Benjamin Olaitan, the Secretary, Makafan Lukman and the PRO Adamu Suleiman of the voice of Ogori/Magongo local Government people, home and Diaspora, reflected at pages 35-36 of volume 1Â of the record.
Ordinarily, admissibility of evidence is governed by Section 6 of the Evidence Act. Once a piece of evidence is relevant, it is admissible in evidence, if other conditions are satisfied. Both exhibits PW6A and PW6B, the interim report and final report respectively are relevant to the facts in issue in this case. The Appellant both in his statement and in his evidence in Chief made reference to the said documents. Documentary evidence being permanent in form, is more reliable than oral evidence and it is used as a hanger to test the credibility of oral evidence C.D.C. (Nig) Ltd v. SCOA (Nig) Ltd (2007) 6 NWLR (Pt.1030) 300 and Ogbeide v. Osifo (2007) ALL FWLR (Pt.365) 548.
The admissibility of the exhibits is therefore proper. The submission of the appellant that PW6, not being a party to the documents could not tender them and that the documents amount to documentary hearsay was misplaced. See Isibor v. State (1970) 1 ALL NLR 248 and Ogbuanyinya v. Okudo (1979) 1 ALL NLR 105.
The Court of Appeal in holding that the exhibits were properly tendered held as follows:
I have gone through the exhibits. They are correspondences between the EFCC and UBA, Oceanic bank, Zenith Bank and First Bank with statements of accounts of the Appellant attached. Others are application for tender, letters of award of contract from Ogori/Magongo Local Government and acceptance of contract.
It is not at all times that documentary evidence must be tendered by the maker. See Alaribe v Okwuonu (2015) 1 NWLR (Pt.929) 547 and Ajakaiye v State (unreported). Appeal No.CA/A/OW/71C/2013 delivered on 05/12/2014. The Supreme Court in Omega v OBC (supra) said:
“It should not be understood as saying that documentary evidence cannot be admitted in absence of its maker.”
The law is trite that the Appellant cannot validly complain against the exhibits, when such documents were also referred by him in defence of his case. The appellant therefore cannot approbate and reprobate. He must be consistent in defence of this case. The evidence of DW1, DW2 and DW4 is to the effect that they were summoned to tender the statements of account of the appellant which was also the case of the Respondent. Where material foundation is laid, any contention as to the non-admissibility of the document on ground that it was not tendered by its maker will be of no moment- Olude v State (2014) 7 NWLR (Pt. 1405) 89 at 95 and John v State (2011) 18 NWLR (Pt.1278) 353.
In the instant case, PW1 land foundation that the exhibits were recovered in the course of investigation and he gave oral account of his investigation on documents. The documents were properly admitted by the trial Court.
The Court below stated the law and practice in regard to admission of documents such as the ones under discourse and there is nothing else to say on that score as they stemmed from sound legal position. I cannot but agree more with the findings and conclusion of the Courts below and find against the appellant.
All the issues resolved against the appellant and from the foregoing and the well-articulated lead judgment, I find no merit in this appeal and I dismiss it as I abide by the consequential orders made.
AMINA ADAMU AUGIE, J.S.C.:I have had the advantage of reading in draft the judgment handed out by my learned brother – Aka’ahs, JSC. I, too, agree with the reasoning and conclusion therein.
For the above stated reasons and the detailed ones adumbrated in the lead judgment which I hereby adopt, I feel that the appeal should be dismissed. No costs awarded.
PAUL ADAMU GALINJE, J.S.C.: I have had the advantage of reading in draft the judgment just delivered by my learned brother Aka’ahs, JSC and I entirely agree with the reasoning and conclusion therein.
My learned brother has dealt with the issues exhaustively in such a way that I have nothing useful to add. For the same reasons articulated in the lead judgment, I hereby dismiss this appeal for lack of merit.
I abide by the consequential orders contained in the lead judgment, including order as to costs.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Kumai Bayang Aka’ahs, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything to add. The appeal lacks merit and it is accordingly dismissed by me.
J. B. Daudu (SAN), with him, E. C. Ukala (SAN), P. B. Daudu, Adedayo Adedeji and C. E. Ogbozor,Esq. for Appellant|Wahab Shittu, Esq.,with him, Abdulwahab Muhammed,Esq., A. A. Abdraheem, Esq., and Rafat Olatunde,Esq. for Respondent.|