FRN v. ABUBAKAR

FRN v. ABUBAKAR

(2020)LCN/14758(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, November 23, 2020

CA/A/401C/2016

RATIO

APPEAL: REQUIREMENT OF A PERSON DESIRING TO APPEAL TO THE COURT OF APPEAL

it is important that I examine the said Order 17 Rule 3(1) and (2) of the Court of Appeal Rules, 2016 which provides thus:
“1. A person desiring to appeal to the Court against any Judgment, sentence or order of the Court below, whether in the exercise of its original or of its appellate jurisdiction, shall commence his appeal by sending to the registrar of the Court below a notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, as the case may be, in the form of such notice respectively set as forms 1, 2, 3, 4, 5 or 7 in the Second Schedule of these Rules.
2. A person sending any notice or notices under this rule shall answer the questions and comply with the requirements set forth therein.” (Emphasis Mine)
The above provision in Subsection (1) simply states that a Notice of Appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, as the case may be, must be in the form of such notice respectively set as forms 1, 2, 3, 4, 5 or 7 in the Second Schedule of these Rules.
By Subsection (2) the Appellant must answer the questions as set in these forms. The Subsection (1) by the use of the word “or” thus: “…forms 1, 2, 3, 4, 5 or 7” (Emphasis Mine) when interpreted shows that the forms are used respectively depending on whether the application of the Appellant is one for a Notice of Appeal or Notice of Application for Leave to Appeal or Notice of Application for Extension of time within which such notice shall be given. PER IDRIS, J.C.A.
CRIMINAL PROCEDURE: ESSENCE OF CRIMINAL FORM 5 IN THE SECOND SCHEDULE TO THE COURT OF APPEAL RULES 2016

The said Criminal Form 5 serves as a guideline to drafting and filing a criminal Notice of Appeal. What this Court is to consider is whether the Notice of Appeal filed by the Appellant answered the questions as set forth in the Criminal Form 5 and this is what this Court will now do.
Looking at the said form 5 which provides the form for filing a Notice of Appeal by the Prosecutor, it begins with a reference to the Registrar thus:
“To the Registrar of the ……
The prosecutor in the above case and being desirous of appealing against the decision under section…
DO HEREBY GIVE NOTICE OF APPEAL (or application for leave to appeal) on the following grounds:
Dated at…. this …day of ……20…
Refer to the Provision of the Law which gives the Prosecutor a right of Appeal or the Right to apply for leave
PARTICULARS OF TRIAL AND CONVICTION
1. Date of Trial…….

In what Court Tried……
3. In what Court appeal heard….
4. Sentence……” PER IDRIS, J.C.A.

APPEAL: WHAT INITIATES APPEAL FROM THE TRIAL COURT TO THE COURT OF APPEAL

It is trite that it is the Notice of Appeal that initiates the appeal from the trial Court to this Court. Simply put, it is a competent Notice of Appeal that is the foundational process that triggers off an appeal from the trial Court to this Court and sustains it. See the case of FRN VS. DAIRO (2015) 6 NWLR (PT. 1454) PG. 141.
In UMEZINNE VS. FRN (2018) LPELR – 46334 (SC), the Apex Court in stating the effect of a defective Notice of Appeal reiterated thus:
“A Notice of Appeal is an originating process; thus any defect therein goes to the root of the Appeal and robs an appellate Court of jurisdiction to hear the appeal – see NONYE IWUNZE V FRN (2015) 6 NWLR (PT.1404) 580 SC, wherein Rhodes-Vivour, J.S.C., observed –
“The Constitution confers on the Court of Appeal Jurisdiction to hear and determine Appeal… The Court of Appeal would lack Jurisdiction to hear an appeal if an Appellant fails to comply with Statutory provisions or the relevant rules of Court. The Originating Process in all appeals is the Notice of Appeal. Once it is found to be defective, the Court of Appeal ceases to have Jurisdiction to entertain an appeal in whatever form.…”
There cannot be a cognizable appeal without a proper Notice of Appeal and the Court would have been divested of its jurisdiction to entertain the appeal. See the case of OLARENWAJU VS. B. O. N. LTD (1994) 8 NWLR (PT. 364) 622. PER IDRIS, J.C.A.

CRIMINAL LAW: INGREDIENTS OF PROVING SECTION 14 OF THE MONEY LAUNDERING (PROHIBITION ACT) 2004

The offence in this count under which the Respondent is being charged, runs contrary to Section 14 of the Money Laundering (Prohibition Act) 2004 and also punishable under Section 14 of the same Act. The said Section provides thus:
“14. (1) Any person who –
a. converts or transfers resources or properties derived directly or indirectly from illicit traffic in narcotic drugs and psychotropic substances or any other crimes or 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 drug or psychotropic substances or any other crime or illegal act to evade the illegal 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 right 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 a term of not less than 2 years or more than 3 years.”
The ingredients of the foregoing Section 14 (1) (a) of the Act are that:
(i) the accused converted or transferred resources or property;
(ii) the resource or property must have been derived directly or indirectly from drugs related offences or any other crimes or illegal acts;
(iii) the conversion or transfer of the resources must be with aim:
a. concealing or disguising the illicit origin of the resources or Property; or aiding any person involved in any of the acts of drug related offences or any other crime or illegal act so as to evade the illegal consequences of his action.
All of these must have been proved by the Prosecution beyond reasonable doubt before the Respondent can be said to have committed the alleged crime. See the case of UDE JONES UDEOGU VS. FEDERAL REPUBLIC OF NIGERIA & ORS (2016) LPELR – 40102 (SC). PER IDRIS, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

FEDERAL REPUBLIC OF NIGERIA APPELANT(S)

And

ALHAJI YAHAYA ABUBAKAR RESPONDENT(S)

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): This case first commenced by a two count charge dated 31st March, 2010 filed in the Federal High Court Abuja before it was later transferred to the Federal High Court, Lokoja (the Trial Court). However, the charge was severally amended until the 4th Amendment.

Upon the close of the case of the Appellant on the 19th February, 2013 the Respondent entered a No Case Submission which ruling was delivered by the Trial Court on 30th April, 2013 wherein the Court overruled the no-case submission and the Respondent was ordered to enter his defence on the ten count of the 3rd Amended Charge. It was after this, that the Prosecution filed the 4th Amended Charge.

The 4th Amended Charge which is the substantive charge is dated 11th November, 2016 and filed 8th November, 2013, wherein the Appellant as Complainant filed a Nine (9) count charge against the Respondent as accused thus:
COUNT ONE
That you Yahaya Abubakar ‘M’, while being the Chairman of Okene Local Government of Kogi state sometimes between July 2008 and September 2011 within the Jurisdiction of the Federal High

Court, committed an offence to wit: converted the sum of N17,440,793.61 (Seventeen Million Four Hundred and Forty Thousand, Seven Hundred and Ninety Three Naira Sixty One Kobo) only, property of the Okene Local Government Area of Kogi State, which was in whole or in part, directly or indirectly, represented proceeds of an illegal Act, Contrary to Section 14 of the Money Laundering (Prohibition Act) 2004 and also punishable under Section 14 of the same Act.
COUNT TWO
That you, Yahaya Abubakar ‘M’ while being the Chairman of Okene Local Government of Kogi State on the 23rd September, 2008 within the Jurisdiction of the Federal High Court, converted the sum of N2,500,000.00 (Two Million Five Hundred Thousand Naira Only), being an illegal act of abuse of office, with the aim of concealing its illicit origin and you thereby committed an offence contrary to Section 14 of the Money Laundering (Prohibition Act) 2004 and also punishable under Section 14 of the same Act.
COUNT THREE
That you, Yahaya Abubakar ‘M’, while being the Chairman of Okene Local Government of Kogi State, on 23rd October, 2008 within the Jurisdiction

of the Federal High Court, converted the sum of N5,05.000.00 (Five Million and Fifty Naira Only), being an illegal act of abuse of office, with the aim of concealing its illicit origin and you thereby committed an offence contrary to Section 14 (1) (a) of the Money Laundering (Prohibition Act) 2004 and also punishable under Section 14 (1) of the same Act.
COUNT FOUR
That you Yahaya Abubakar ‘M’, while being the Chairman of Okene Local Government of Kogi State, on 24th September, 2008 within the Jurisdiction of the Federal High Court, converted the sum of N1,000,000.00 (One Million Naira Only), being an illegal act of abuse of office, with the aim of concealing its illicit origin and you thereby committed an offence contrary to Section 14 (1) (a) of the Money Laundering (Prohibition Act) 2004 and also punishable under Section 14 (1) of the same Act.
COUNT FIVE
That you, Yahaya Abubakar ‘M’, while being the Chairman of Okene Local Government of Kogi State on between 2008 and 4th June, 2010 within the Jurisdiction of the Federal High Court with intent to defraud obtained from other persons by false pretences, the sum

of N8,805,000.91 (Eight Million Eight Hundred and Five Thousand and Ninety One Kobo) and thereby committed an offence contrary to Section 1(1)(a) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006 and also punishable under Section 1 (3) of the same Act.
COUNT SIX
That you Yahaya Abubakar ‘M’ while being the Chairman of Okene Local Government of Kogi State on between 2008 and 4th June, 2010 within the Jurisdiction of the Federal High Court, under the disguise of deducting value added tax (VAT) fraudulently converted the sum of N8,805,000.91 (Eight Million Eight Hundred and Five Thousand Nine Hundred and Ninety One Kobo) and thereby committed an offence Contrary to Section 40 of the Federal Inland Revenue Act 2007 and also punishable under Section 40 of the same Act.
COUNT SEVEN
That you Yahaya Abubakar ‘M’ while being the Chairman of Okene Local Government of Kogi State on 15th January, 2009 within the Jurisdiction of the Federal High Court, converted the sum of N10,208.000.00 (Ten Million, Two Hundred and Eight Thousand Naira only), being an illegal act of abuse of office, with the aim of concealing

its illicit origin and you thereby committed an offence contrary to Section 14 (1) (a) of the Money Laundering (Prohibition Act) 2004 and also punishable under Section 14 (1) of the same Act.
COUNT EIGHT
That you Yahaya Abubakar ‘M’ while being the Chairman of Okene Local Government of Kogi State on 23rd March, 2009 within the Jurisdiction of the Federal High Court, converted the sum of N15,000.000.00 (Fifteen Million Naira Only) being an illegal act of abuse of office, with the aim of concealing its illicit origin and you thereby committed an offence Contrary to Section 14 (1) of the Money Laundering (Prohibition Act) 2004 and also punishable under Section 14 (1) of the same Act.
COUNT NINE
That you Yahaya Abubakar ‘M’ while being the Chairman of Okene Local Government Area of Kogi State on 9th November, 2009 within the Jurisdiction of the Federal High Court, converted the sum of N3,000.000.00 (Three Million Naira only), being an illegal act of abuse of office, with the aim of concealing its illicit origin and you thereby committed an offence contrary to Section 14 of the Money Laundering (Prohibition Act) 2004 and

also punishable under Section 14 of the same Act.

The Respondent entered a plea of not guilty to each of the nine (9) counts in the 4th Amended Charge.

The Appellant in proof of its case, called Five (5) witnesses who testified and tendered fifteen (15) documents admitted and marked as Exhibits PW1-A – PW4-A4 thus:
EXHIBIT PW1 – A – Document titled “Stealing of Okene L.G. Funds Petition” dated 26th March 2010
EXHIBIT PW1 – A1 – Letter dated 6th April, 2010
EXHIBIT PW1 – A2 – Synopsis of Petition
EXHIBIT PW1 – B – Letter dated 4th June, 2010
EXHIBIT PW1 – C – Letter dated 5th September, 2011 and Ref. No. 3000/EFCC/ABG/E62/Vol. 2/258.
EXHIBIT PW1 – C1 – Attachment dated 20th July, 2010
EXHIBIT PW1 – C2 – Attachment dated 24th August, 2010
EXHIBIT PW1 – D – Letter dated September, 2011
EXHIBIT PW1 – E – Certificate of Deposit of UBA PLC
EXHIBIT PW2 – A – Letter titled “Re: Investigation Activities – Account Name: Mr. Yahaya Abubakar Jimoh. Account No.

09910000030211 dated 23rd July, 2010 and Ref: No. PHB/CU/EFCC/JO/20/07/2010/341.”
EXHIBIT PW2 – A1 – Memo dated 26/03/2008
EXHIBIT PW4 – A – Document titled “Application for Loan” dated 20/01/09EXHIBIT PW4-A1 – Document titled “offer of cash collaterized facility” dated 19th January, 2009.
EXHIBIT PW4 – A2 – Document titled “cash collaterized Facility/Disbursement Form”.
EXHIBIT PW4 – A3 – Memorandum of Charge dated 19/01/2009
EXHIBIT PW4 – A4 – Document titled “Certificate of Deposit”.

On the other hand, the Respondent opened its defence on the 19th March, 2014 and called Six (6) witnesses who testified and tendered Nine (9) documents thus:
EXHIBIT DW1 A – Document Titled “Guidelines for Hon. Chairman of Local Government” dated 8/8/2008.
EXHIBIT DW4 – A: Document titled “Local Government indebtedness to Federal Inland Revenue Service, Lokoja Integrated Tax Office” dated 21st March, 2012.
EXHIBIT DW4 – B: Minutes of Monthly meeting of the Honourable

Commissioner Ministry of Local Government and Chieftaincy Affairs with Honourable Chairman of Local governments held on 23rd March, 2010 at FAREC Lokoja.”
EXHIBIT DW6 – A – Letter titled “Offer of provisional Award of Contract for the Construction of One Unit of 3 Bedroom Bungalow at Okene Local Government of Kogi State” dated 11/9/2007.
EXHIBIT DW6 – B – Statement of account of Yahaya Jimoh from UBA from 15/1/2008 to 18/3/2014.
EXHIBIT DW6 – C – Document titled “Pictorial Records of Projects Executed between 2008/2012 under the administration of Alh. Yahaya Abubakar as Chairman of Okene Local Government, Kogi State.”
EXHIBIT DW6 – D – Document titled “Report of Central Ad-Hoc Committee on Projects Inspection/Assessment Tour of the 21 Local Government Councils of Kogi State by Hon. Members of the State House of Assembly from Monday 18th June, 2009.
EXHIBIT DW6 – E – Document Titled “House Resolution on a Commendation and appreciation letter for success in mobilizing the Youths of Area for the submission of their weapons/Arms to the

Government” dated 24/11/2009
EXHIBIT DW6 – F – Document titled “House of Assembly Correspondents Certificate of Merit” dated 16/12/2010.

The Respondent closed its case on 3rd November, 2015 and the matter was adjourned to 22nd February, 2016 for adoption of final written addresses, parties then filed and adopted their respective addresses on the 25th April, 2016.

After considering the evidence led by parties, the Learned Trial Judge, Honourable Justice I. E. Ekwo delivered judgment in the Charge No. FHC/LKJ/15C/2011, on 19th May, 2016 wherein the trial judge granted judgment in favour of the Respondent.

Dissatisfied with the judgment of the trial Court, the Appellant filed a Notice of Appeal dated 2nd June, 2016 comprising of ten (10) grounds of appeal. The parties in the appeal before this Court filed and exchanged their respective briefs of argument.

In the Appellant’s brief of argument as settled by his counsel Shittu Wahab Kunle Esq., and dated 1st August, 2016 and filed 3rd August, 2016 the following issues for determination were distilled from the grounds of appeal as follows:

Whether considering the clear wordings of the Charge on which the Respondent is charged and the material/evidence supplied by the Prosecution, the case of the Appellant was not sufficiently made against the Respondent. (Ground 1)
2. Whether having regard to the Charge and the totality of Evidence led at the Trial including the circumstances of this case, the appellant has not proved the guilt of the Respondent beyond reasonable doubt as required by law to warrant his conviction and sentence. (Grounds 2, 3, 4, 7, 8, 9 and 10).
3. Whether considering the clear provision of Section 159 of the Criminal Procedure Act, the lower Court did not fall into a serious/grave error by striking out Count 5 of the Charge for duplicity. (Ground 5).
4. Juxtaposing the mandatory provision of Section 40 of the Federal Inland Revenue Service (Establishment) Act, 2007 with the facts of this case, whether the Respondent in his capacity as the Executive Chairman of Okene Local Government, by deducting Value added Tax Under his watch and failing to remit same to the appropriate tax authority is not personally liable for the offence so charged. (Ground 6).

On Issue One, the Appellant’s counsel argued against the finding of the trial Court at page 703 of the judgment that the Respondent was not confronted with the allegation in count one as this allegation is not supported by facts or evidence.

Firstly, the Appellant’s Counsel argued that from the Record of Proceedings of Wednesday 13th November, 2013, when Count 1 in the 4th Amended Charge was read and explained to the accused person, he pleaded not guilty. Counsel further argued that how can the accused who pleaded not guilty to Count 1 after same was read to him be said not to have been confronted with the specific allegation of converting the total amount of N17,440,793.61 in Count 1.

Secondly, the Appellant’s Counsel argued that the same trial Court which acknowledged the knowledge of the Respondent of the allegation contained in Count 1 in his ruling on no case submission dated 30th April, 2013 now turned around to hold in the Judgment in the same case to say he is unable to see in the course of evidence where the Defendant was confronted with the specific allegation of converting the total amount of N17,440,793.61 or the two

fractions thereof stated in Count 1.

Thirdly, the Appellant’s Counsel argued that it is clear from the evidence of the Respondent contained in Page 685 – 703 of the Record of Appeal that he was confronted with the allegation contained in Count 1. Counsel also referred this Court to the evidence of PW4 of 28th June, 2012, Exhibits PW1 – E, PW4 – A2, PW4 – A3 and pages 485 – 492.

The Appellant’s Counsel also argued that the PW1, in the proceedings of the trial Court on the 27th day of January, 2012, 23rd of February, 2012, 5th of June, 2012 gave evidence linking the Respondent to count 1. Counsel further stated that PW4 gave evidence of the culpability of the Respondent in respect of count 1 which arises from the use of the local government fund to secure his personal facility with UBA. Counsel further argued that it is the irresistible conclusion that the Respondent upon taking loan as shown in Exhibits PW4 – A, PW4 – A1, PW4 – A2, PW4 – A3 and PW4 – A4 had expressly covenanted and donated consent to the bank to utilize the funds of the local government in satisfaction of the

indebtedness of the personal loan in the event of default and this has knocked out any proposition that the Respondent was not one of the signatories of the Local Government’s account.

In conclusion on this issue, the Appellant’s Counsel argued that the trial Court misapprehended the case of the Appellant. On this point, counsel cited the case of FEDERAL MINISTRY OF HOUSING & ANOR VS. COMET SHIPPING AGENCIES LIMITED (2009) 9 NWLR (PT. 1145) 193 AT 220.

On issue two, it is the argument of the Appellant is that the prosecution was able to prove the complete ingredients of money laundering against the Respondent as provided for under Section 14 of the Money Laundering Prohibition Act. Counsel cited the case of KAZEEM VS. STATE (2009) 29 WRN 1 – 176.

The Appellant’s Counsel argued that it is strange that the Court did not consider the evidence put forward by the Appellant either wholly or tangibly especially Exhibits PWA – A3 and PW4 – A10 and documents earlier referred to in Pages 775 and 777 of the record and this is a breach of the Appellant’s constitutional right to fair hearing.

The argument of the Appellant’s Counsel on issue three is that the trial Court in considering count 5 and 6 failed to consider Section 159 of the CPA which was the applicable law at the time and that the trial Court’s conclusion thereof was erroneous, not representing the correct position of the law. Counsel referred this Court to pages 389 – 392 of the Record of Appeal and submitted that it follows that the decision of the trial Court striking out count 5 for duplicity is non sequitur.

The argument of the Appellant’s Counsel on issue three is that several lodgments into the account of the Respondent accounts during his tenure in circumstances described in the proceedings are compelling and potent being a public officer and also the evidence of PW3, Exhibit DW1 – A, DW4 during cross-examination and Exhibit PW1 – B and that the Respondent could not furnish any proof of the payment of the liability contained in count 5 and 6. Counsel cited several authorities on this point as can be seen in pages 24 – 29 of the Appellant’s Brief of Argument.

In conclusion, the Appellant’s Counsel urged this Court to set aside the

decision of the trial Court and resolve all issues in favour of the Appellant.

On the other hand, the Respondent filed his Respondent’s Brief of Argument dated 18th October, 2018 and filed on 29th October, 2018 as settled by his Counsel, Hameedat Ometere Umar Esq. In the said brief, the Respondent raised a Preliminary Objection to challenge the competence of the appeal on the following grounds:
1. The Proceeding giving rise to this Appeal was the Criminal Trial of the Respondent.
2. By Order 17 Rule 3 (1) of the Court of Appeal Rules, 2016, a party seeking to appeal against the decision in a criminal Trial must give his Notice of Appeal by filing either forms 1, 2, 3, 4, 5 or 7.
3. The use of the above criminal forms is mandatory
4. The Appellant did not file any Criminal forms.
5. Also, answering the questions on the criminal forms is mandatory.
6. Appellant did not answer any of the questions on the Criminal forms.
7. The Appeal is incompetent.

The Respondent’s Counsel argued all the grounds above in saying that the Notice of Appeal filed by the Appellant is incompetent and must be struck out. Counsel

further urged this Court to strike out the appeal.

In the Respondent Brief of Argument, the Respondent’s Counsel raised the following issues for determination:
1. Whether the Learned Trial Judge was right in holding that the Appellant failed to prove beyond reasonable doubt that the Respondent had converted the respective sums of N17, 440, 793.61 and N15,000,000.00k belonging to the Okene Local Government as contained in Counts 1 and 8 of the 4th Amended Charge. (formulated from Grounds 1 and 8 of the Notice and Grounds of Appeal).
2. Whether the learned Trial Judge was right to hold that the Prosecution had not established beyond reasonable doubt that the Respondent had converted the various sums of money mentioned or contained in Counts 2, 3, 4, 7 and 9 of the 4th Amended Charge. (Formulated from Grounds 2, 3, 4, 6, 7, 8 and 9 of the Notice and Grounds of Appeal).
3. Whether the Trial Court was right to hold that the prosecution had failed to prove Count 6 in the 4th Amended Charge against the Appellant beyond reasonable doubt. (Formulated from Ground 6 of the Notice and Grounds of Appeal).
4. Whether the Learned Trial Judge

was right to hold that Count 5 of the 4th Amended charge was bad and if not, whether the Prosecution had proved its case under count 5 against the Appellant beyond reasonable doubt. (Formulated from Ground 5 of the Notice and Grounds of Appeal).

The Argument of the Respondent’s Counsel on issue one is that there is no credible evidence before the trial Court to establish the ingredients of the offence alleged against the Respondent in count 1 and 8 of the 4th Amended Charge. Counsel further submitted that it is inherent in the provision of Section 14 of the Money Laundering Prohibition Act that it must be shown that it was the accused himself who converts or transfers property or resources but in this case what the Prosecution had established by their evidence was that the staff of UBA had done the transfer without anything to show that the said transfer was done with the knowledge and of the Respondent. On this point, counsel cited the case of F.R.N. VS. JOSHUA CIBI DARIYE (2011) LPELR 4151 – CA.

The argument of the Respondent’s Counsel on issue two is that, even though the prosecution did not prove the essential elements of the

offences charged, the Respondent still proffered explanations before the trial Court. Counsel also submitted that the evaluation of evidence adduced at the trial Court lie exclusively within the province of the trial Court and that the trial Court discharged this responsibility. Counsel therefore urged this Court to hold that the Appellant had not shown any findings made by the learned trial judge was perverse.

The argument of the Respondent’s Counsel on issue three is that, in view of the Respondent’s evidence that he was not aware of the failure to remit as he had instructed the Treasurer to remit whatever is owed, he has established a defence under Section 40(2) of the Federal Inland Revenue Service (Establishment) Act.

The argument of the Respondent’s Counsel on issue four is that, the totality of the evidence adduced by the prosecution in support of the charge is to merely show that the Okene Local Government owed the FIRS and there is no evidence of any pretense emanating from the Respondent and that there was no evidence that the Respondent had personally collected any money from anybody as tax. Counsel referred this Court

to Section 40 and 45 of the Kogi State Local Government Law.

The Respondent’s Counsel also argued that the reliance on the status of the Respondent as the Chairman of the Local government by the Appellant to saddle him with responsibility to pay tax due from the Local Government is not supported by the local Government law because that is the duty of the treasurer by Section 45 of the Kogi State Local Government Law.

In conclusion, the Respondent’s Counsel submitted that this appeal is incompetent and ought to be struck out.

The Appellant in response filed a Reply Brief of Argument dated 29th January, 2018 and filed on 30th January, 2018 as settled by its Counsel Kunle Wahab Shittu Esq.

The argument of the Appellant’s Counsel herein is that on the issue of the Notice of Preliminary Objection, that the Preliminary Objection is misconceived and not grounded in law. Counsel further submitted that the forms referred to in the Second Schedule of the Court of Appeal Rules, 2016 offers a guide on what should be contained in the Notice of Appeal and that the Notice of Appeal at pages 120 – 129 of the Record of Appeal

complies with the Form 3 in the Second Schedule by answering the questions therein.

In response to the issue one raised in the Respondent Brief of Argument, the Argument of the Appellant’s Counsel is that the Respondent executed documentations in respect of the facility covered by Exhibits PW4 – A, PW4 – A1, PW4 – A2, PW4 – A3, PW4 – A4 wherein he listed Okene Local Government as providing Collateral for the facility granted and wherein he undertook that the bank was at liberty to treat his personal account and that of Local Government with the bank.

The Appellant’s Counsel further argued that the evidence of PW1 and PW4 are credible, reliable and believable being wholly consistent with legally evidential materials as reflected in Exhibits PW1 – E, PW4 – A, PW4 – A2, PW4 – A3, PW4 – A4 and PW1 – D1 respectively.

The argument of the Appellant in reply to the Respondent Counsel’s argument on issue two in the Respondent’s Brief of Argument, is that the Respondent was unable to explain the origin of the huge funds found in his account even as a public officer.

Counsel further argued that the inference is that the lodgments are proceeds of unlawful activity and corruption. Counsel referred this Court to the case of ADENIJI VS. STATE (2001) 25 WRN. In arguing that the onus is on the accused person to rebut the guilt based on circumstantial evidence but this is based on preponderance of probabilities.

The Appellant’s Counsel in response to the argument of the Respondent Counsel on issue three and four of the Respondent Brief of Argument, adopted the argument on issue iii and iv of the Appellant’s Brief of Argument and urged this Court to sustain the Appellant’s argument on the issues, allow the appeal and set aside the discharge and acquittal of the Respondent by the Federal High Court, Lokoja and enter an order of guilty as charged with the imposition of the appropriate sentence prescribed by the Money Laundering Prohibition Act, 2014 on all the counts.

DECISION ON THE NOTICE OF PRELIMINARY OBJECTION BY THE RESPONDENT
In determining the Notice of Preliminary Objection, I would raise a sole issue for determination thus:
“Whether the Notice of Appeal filed by the Appellant in

this Court is competent by virtue of Order 17 Rule 3 (1) and (2) of the Court of Appeal Rules, 2016.”

It is worthy of note here that Order 17 of the Court of Appeal Rules, 2016 refers to criminal Appeals.

Now, in dealing with the issue which I have raised for determination, it is important that I examine the said Order 17 Rule 3(1) and (2) of the Court of Appeal Rules, 2016 which provides thus:
“1. A person desiring to appeal to the Court against any Judgment, sentence or order of the Court below, whether in the exercise of its original or of its appellate jurisdiction, shall commence his appeal by sending to the registrar of the Court below a notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, as the case may be, in the form of such notice respectively set as forms 1, 2, 3, 4, 5 or 7 in the Second Schedule of these Rules.
2. A person sending any notice or notices under this rule shall answer the questions and comply with the requirements set forth therein.” (Emphasis Mine)
The above provision in Subsection (1) simply

states that a Notice of Appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, as the case may be, must be in the form of such notice respectively set as forms 1, 2, 3, 4, 5 or 7 in the Second Schedule of these Rules.
By Subsection (2) the Appellant must answer the questions as set in these forms. The Subsection (1) by the use of the word “or” thus: “…forms 1, 2, 3, 4, 5 or 7” (Emphasis Mine) when interpreted shows that the forms are used respectively depending on whether the application of the Appellant is one for a Notice of Appeal or Notice of Application for Leave to Appeal or Notice of Application for Extension of time within which such notice shall be given.
In the instant appeal, the form applicable is Criminal Form 5 in the Second Schedule to the Court of Appeal Rules, 2016. The said Criminal Form 5 serves as a guideline to drafting and filing a criminal Notice of Appeal. What this Court is to consider is whether the Notice of Appeal filed by the Appellant answered the questions as set forth in the

Criminal Form 5 and this is what this Court will now do.
Looking at the said form 5 which provides the form for filing a Notice of Appeal by the Prosecutor, it begins with a reference to the Registrar thus:
“To the Registrar of the ……
The prosecutor in the above case and being desirous of appealing against the decision under section…
DO HEREBY GIVE NOTICE OF APPEAL (or application for leave to appeal) on the following grounds:
Dated at…. this …day of ……20…
Refer to the Provision of the Law which gives the Prosecutor a right of Appeal or the Right to apply for leave
PARTICULARS OF TRIAL AND CONVICTION
1. Date of Trial…….

In what Court Tried……
3. In what Court appeal heard….
4. Sentence……”
I agree with the Appellant’s Counsel like I had already said, that this form offers a guide on what should be contained in the Notice of Appeal. However, the form the Appellant’s Counsel was referring to was Civil Form 3 which relates to civil Appeals as provided for under Order 7 of the Court of Appeal Rules, 2016 and this shows clearly that the Appellant’s counsel misconstrued the applicable forms required in this instant appeal.

The form required for a Notice of Appeal under a criminal appeal is different from the one required in civil appeals.
The said questions which the Appellant said it answered shows that it is making reference to Civil Form 3 provided for under Order 7 Rule 2 of the Court of Appeal, Rules 2016 which set forth questions to answer such as: the basis of the appeal, the decision of the lower Court complained of, grounds of appeal, reliefs sought from the Court of Appeal, persons directly affected by the appeal including address for service of the Appellant as prescribed by Civil Form 3.
The above is clearly different from what is required under a criminal appeal which this case falls under.
Looking at the Criminal Form 5 of the Second Schedule to the Court of Appeal Rules, 2016 on what the Notice of Appeal under criminal appeal should contain which I have already reproduced above, the Prosecutor

(the Appellant) is to clearly write to the Registrar of the trial Court (Court below) that he is desirous of appealing against the decision under the provision of the law that gives him the right to appeal. This the Appellant clearly did not do. See pages 920 – 928 of the Record of Appeal.
Also, the Appellant did not state the date of the trial at the trial Court.
The use of the word “shall’ as used in the context of the provision of Subsection 2 of Order 17 Rule 3 of the Court of Appeal Rules, 2016 connotes a command. It is true that generally the word “shall” is interpreted in its mandatory sense. However, whether the word is used in its mandatory or directory sense depends on the context in which it is used. See the case of BPS CONSTRUCTION & ENGINEERING CO. LTD VS. FCDA (2017) LPELR – 42516 (SC).
When as seen above, the Notice of Appeal does not comply with mandatory provisions of statute; in the instant case, the Court of Appeal Rules, 2016, the effect is that the Notice of Appeal is incompetent.

It is trite that it is the Notice of Appeal that initiates the appeal from the trial Court to this

Court. Simply put, it is a competent Notice of Appeal that is the foundational process that triggers off an appeal from the trial Court to this Court and sustains it. See the case of FRN VS. DAIRO (2015) 6 NWLR (PT. 1454) PG. 141.
In UMEZINNE VS. FRN (2018) LPELR – 46334 (SC), the Apex Court in stating the effect of a defective Notice of Appeal reiterated thus:
“A Notice of Appeal is an originating process; thus any defect therein goes to the root of the Appeal and robs an appellate Court of jurisdiction to hear the appeal – see NONYE IWUNZE V FRN (2015) 6 NWLR (PT.1404) 580 SC, wherein Rhodes-Vivour, J.S.C., observed –
“The Constitution confers on the Court of Appeal Jurisdiction to hear and determine Appeal… The Court of Appeal would lack Jurisdiction to hear an appeal if an Appellant fails to comply with Statutory provisions or the relevant rules of Court. The Originating Process in all appeals is the Notice of Appeal. Once it is found to be defective, the Court of Appeal ceases to have Jurisdiction to entertain an appeal in whatever form.…”
There cannot be a cognizable appeal without a proper

Notice of Appeal and the Court would have been divested of its jurisdiction to entertain the appeal. See the case of OLARENWAJU VS. B. O. N. LTD (1994) 8 NWLR (PT. 364) 622.

In conclusion of all my findings above, I am of the well-considered view that the Criminal Notice of Appeal having failed to comply with the statutory provisions of Order 17 Rule 3(1) and (2) of the Court of Appeal Rules, 2016, the said Notice of Appeal filed by the Appellant is incompetent. Following therefore, this Court has no jurisdiction over this appeal. However, assuming that I am wrong, this Court would go ahead to determine the issues between the parties and in doing so, I wish to adopt the issues for determination raised by the Appellant in the Appellant’s Brief of Argument thus:
1. Whether considering the clear wordings of the charge on which the Respondent is charged and the material/evidence supplied by the Prosecution, the case of the Appellant was not sufficiently made against the Respondent.
2. Whether having regard to the Charge and the totality of Evidence led at the Trial including the circumstances of this case, the appellant has not proved the

guilt of the Respondent beyond reasonable doubt as required by law to warrant his conviction and sentence.
3. Whether considering the clear provision of Section 159 of the Criminal Procedure Act, the lower Court did not fall into a serious/grave error by striking out Count 5 of the Charge for duplicity.
4. Juxtaposing the mandatory provision of Section 40 of the Federal Inland Revenue Service (Establishment) Act, 2007 with the facts of this case, whether the Respondent in his capacity as the Executive Chairman of Okene Local government, by deducting Value added Tax Under his watch and failing to remit same to the appropriate tax authority is not personally liable for the offence so charged.

MAIN JUDGMENT
ISSUE ONE
Whether considering the clear wordings of the Charge on which the Respondent is charged and the material/evidence supplied by the Prosecution, the case of the Appellant was not sufficiently made against the Respondent.

The Appellant’s Counsel has argued that in respect of Count 1, the trial Court on page 703 of the Record of Appeal held that the Respondent was not confronted with the allegation in Count 1.

Counsel further argued against this finding of the trial Court.

I think the page of the Record of Appeal the Appellant’s Counsel was referring to is page 903 of the Record of Appeal wherein the trial Court held thus:
“Though the Prosecution posits that they have proved Count 1 beyond reasonable doubt, I am unable to see in the course of evidence where the Defendant was confronted with the specific allegation of converting the total amount of N17,440,793.61 or the two fractions thereof stated in Count 1 in the course of trial or at any time or even during cross-examination. In other words, the Defendant was not made to answer to this allegation at all, therefore leaving the existence of this offence to presumption. After the Defendant pleaded not guilty to the count, it is obligatory on the prosecution to rebut the presumption of innocence of the defendant on the essential particulars of this allegation….”

Looking at the above finding of the Court, it is clear that the Appellant’s Counsel took this part of the Court’s finding out of context. The Appellant’s Counsel attributed a different meaning to the

finding of the trial Court to simply mean that the Respondent was not confronted with the allegation in count 1 when what the Court actually means is that the Respondent was not confronted with the specific allegation of converting the total amount of N17,440,793.61 or the two fractions thereof stated in count 1 in the course of trial or at any time or even during cross-examination. He even went ahead in his findings to say:
“…In other words, the Defendant was not made to answer to this allegation at all, therefore leaving the existence of this offence to presumption. After the Defendant pleaded not guilty to the count, it is obligatory on the prosecution to rebut the presumption of innocence of the defendant on the essential particulars of this allegation….”

That having been said, it is now the duty of this Court to ascertain and resolve the argument between the Appellant and Respondent’s Counsel as to whether considering the clear wordings of the charge on which the Respondent is charged especially in Count 1 and the material/evidence supplied by the Prosecution, the case of the Appellant was not sufficiently made against

the Respondent. Count 1 of the charge reads thus:
“That you Yahaya Abubakar ‘M’, while being the Chairman of Okene Local Government of Kogi state sometimes between July 2008 and September 2011 within the Jurisdiction of the Federal High Court, committed an offence to wit: converted the sum of N17,440,793.61 (Seventeen Million Four Hundred and Forty Thousand, Seven Hundred and Ninety Three Naira Sixty One Kobo) only, Property of the Okene Local Government Area of Kogi State, which was in whole or in part, directly or indirectly, represented proceeds of an illegal act, contrary to Section 14 of the Money Laundering (Prohibition Act) 2004 and also punishable under Section 14 of the same Act.”

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 drug or psychotropic substances or any other crime or illegal act to evade the illegal 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 right 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 a term of not less than 2 years or more than 3 years.”
The ingredients of the foregoing Section 14 (1) (a) of the Act are that:
(i) the accused converted or transferred resources or property;
(ii) the resource or property must have been derived directly or indirectly from drugs related offences or any other crimes or illegal acts;
(iii) the conversion or transfer of the resources must be with aim:
a. concealing or disguising the illicit origin of the resources or Property; or<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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aiding any person involved in any of the acts of drug related offences or any other crime or illegal act so as to evade the illegal consequences of his action.
All of these must have been proved by the Prosecution beyond reasonable doubt before the Respondent can be said to have committed the alleged crime. See the case of UDE JONES UDEOGU VS. FEDERAL REPUBLIC OF NIGERIA & ORS (2016) LPELR – 40102 (SC).

The question now would be, was the case of the Appellant sufficiently made against the Respondent? This question can only be resolved by considering the evidence put forward in proof of Count 1 at the trial Court as follows:
The PW1 (Investigating Police officer) in respect of count 1 during his evidence contained at pages 566 of the Record of Appeal stated thus:
“…The response from UBA is that the accused person took personal loan from the bank and used the Local Government fund to pay N17 Million. Because it was a fraudulent act, we asked the bank to refund the money and it was done. We have evidence of the recovery. The bank issued a draft of N7 Million and N10 Million respectively in favour of Okene Local Government….”

This evidence by the PW1 above shows that it was during investigation he gathered from the UBA Plc that the accused person took personal loan from the bank and used the Local Government fund to pay 17Million (which is not even the same as the total sum of N17,440,793.61) and that the recovery of the said sum of N17Million was not even done by the Respondent but by the UBA upon discovery that it was a fraudulent act. This evidence did not mention whether the fraudulent act was by the Respondent. It was not even stated that the draft was raised on the instruction of the Respondent in favour of the Okene Local Government.

The PW1 continued his evidence contained in page 570 of the Record of Appeal thus:
“I stand by my evidence in respect of the loans the accused person took from UBA. Part of the response we got from UBA revealed that the same personal account of the accused person was in deficit of over N11m as at 19th March, 2009. In order to offset this deficit, there was a fraudulent arrangement which involved the movement of funds that is 15m being the Local Government Fund, was placed as fixed deposit in the same

bank, which was to take effect from 16th March to 15th April, 2009; interval of one month before the date of maturity of the loan i.e. 23rd March 2009. The fixed deposit was closed and the fund of N15m was credited to the personal account of the Accused Person. The deficit of N11m was cleared from the Accused Person’s account. This was a fraudulent transaction. The bank was requested to return the money with interest. The bank then paid N17m by N10m and N7m respectively back into the Local Government Account. This can be found in Exhibit D which I already tendered….”

The Evidence of PW1 above has made me curious and I wonder why the bank was asked to return the money with interest (Money which was alleged to have been a fraudulent transaction by the Respondent).

PW1 tendered Certificate of deposit and it was admitted and marked Exhibit PW1 – E. The said certificate of deposit shows that the client of the UBA therein is the Okene Special Intervention and nothing else to show that the fixed deposit of N15Million was credited to the personal account of the Respondent.

During cross-examination of PW1 contained in page 576 of

the Record of Appeal, the PW1 stated thus:
“…It was on the basis of Exhibit PW1-A that we arrested the Accused person. After his arrest, the accused person made a statement… I have read the statement. The statement he made was in response to the allegations in Exhibit PW1 – A. It was after he made the statement that we wrote to the various banks and organization….”
PW1 went further to state that:
“…There is nothing in Exhibit PW1 – A that establishes the charge in Count 1 of the Charge sheet. The allegation was arrived at during the course of investigation….”

Even this piece of evidence by the PW1 above clearly states that there is nothing in PW1 – A (which is the petition upon which the Appellant started its investigation) to show the Respondent converted the sum of N17,440,793.61 which is the subject of count 1.

The PW1 also stated in page 576 – 577 of the Record of Appeal that:
“…We requested for the mandate card to know the signatories to the

Local Government account. The Director of the Local Government, Treasurer and cashier of the Local Government are the signatories to the account. The accused person is not a signatory to the Account. For money to be withdrawn from the account; two out of the three signatories must sign the cheque… In the Course of the investigation, we obtained the statement of Accounts of the Local Government. The statement of the Local Government Account was not amongst the Exhibits I tendered. Exhibit D is the statement of account of the accused person which I tendered. I cannot find any deposit of the sum of money stated in Count 1 in Exhibit PW1 – D…. From the Exhibits I tendered there is no authorization by the accused person to deduct any money from the Local Government Account to be paid into his personal account….”

The evidence of the PW1 above is clear that the Respondent is not a signatory to the Okene Local Government Account. For money to be withdrawn from the account; two out of the three signatories must sign the cheque. He even confirmed that he did not find any deposit in the sum of N17,440,793.61 stated in Count 1 of the charge.

Also, the PW4 (business manager in UBA Plc, Okene Branch) also gave evidence in respect of count 1 thus:
“… There is a loan facility that was accessed by the Accused person. The loan was for N10.8 million. The facility was secured with fixed-time deposit. It was a personal facility by the Accused person. A fixed deposit of the Local Government was used to secure the facility of N15million. Upon maturity of the loan, the fixed deposit of the Local Government was crashed into his personal account to clear the loan obliged….”

He tendered documents admitted and marked Exhibits PW4 – A, PW4 – A1, PW4 – A2, PW4 – 3 and PW4 – A4. The PW4 further gave evidence contained in page 587 of the Record of Appeal thus:
“The Loan was not repaid upon maturity. Fixed deposit belonging to the Local Government was used in paying back the Loan. Exhibit PW1 – D is a letter from UBA Plc, to pay back the amount in the fixed deposit which was used in paying back the loan taken by the Accused person…. The Principal amount is N15 Million and the accrued interest is N2,440,793.61k.

This transaction was done by the former manager upon the application of the Accused person. There is an e-mail authorizing the operations manager to crash the fixed deposit of the Local Government. The facility taken by the accused person has not been paid.”

The PW4 in his evidence reproduced above gave evidence that the Respondent authorized the Operations Manager of UBA to crash the fixed deposit of the Local Government. The evidence in proof of that fact (the email) was not produced before the trial Court. How then can the truth of that fact be ascertained?

A charge is proved by calling evidence and the sole object and end of evidence is to ascertain the truth of a disputed fact or several disputed facts, or in ornate legal phraseology to resolve points in issue. It is therefore not possible to determine here whether the Respondent authorized the operations manager of UBA to crash the fixed deposit of the Okene Local Government.

During cross-examination of PW4, in contradicting his evidence already made above stated thus:
“There is no document from the accused person authorizing the UBA to crash the fixed deposit of the Local

Government into his personal account….”

These pieces of evidence contradict each other. A piece of evidence contradicts another when it affirms the opposite of what the other evidence has stated. See the case of ONWUKIRU VS. STATE (1994) LPELR – 14224 (CA) P. 25 PARAS E – F.

If there is no evidence of the email by the Respondent authorizing the crashing of the fixed deposit of the Okene Local Government, it then goes to show that the crashing of the fixed deposit of Okene Local Government was done by the Bank without the authority of the Respondent.

At page 596 of the Record of Appeal, the PW4 in continuation of his Cross-examination stated thus:
“The signatories to Okene Local Government account with UBA are: Director of Local Government (DLG) and Treasurer. With respect to the account, it is the DLG and Treasurer that can authorize transaction.”

During the Cross-examination of PW5 as contained in page 604 of the Record of Appeal he stated that:
“The Director Local Government and the Treasurer of the Local Government are the signatories to the accounts of the Local Government with the Keystone

Bank and UBA. The accused is not a signatory……”

These pieces of evidence show that the Respondent is not even a signatory to the Bank accounts of the Okene Local Government area.

Going further, the documents the Appellant’s witnesses tendered that relates to count 1 are: PW1 – A, PW1 – A1, PW1 – A2, PW1 – A3, PW1 – A4 and PW1 – D and PW1 – E. Exhibit PW1 – A1 is the document titled “Offer of cash collaterised facility”.

The said Exhibit stated that the Collateral is “lien on fixed Deposit”. This does not show which fixed deposit is being referred to whether it is the Respondent’s account or the Okene Local Government Initiative’ account.

Exhibits PW1 – A3 which is titled “Memorandum of Charge Over Credit Balance/Deposit” also does not state the account to which the Ten Million, Eight Hundred Thousand Naira agreed to would be extended by the bank to the Respondent and standing to the credit of the Respondent.

Also, the cheques of N10,000,000.00 dated 27th September, 2011 and N7,440,793.61 dated 28th September,

2011 respectively and attached to Exhibit PW1-D which is the letter dated and titled “RE-Invitation Letter – Mr. Yahaya Abubakar Jimoh “from the United Bank of Africa Plc are drafts raised in favour of the Okene Local Government Special Intervention account for the investment booked and accrued interest from 2009.”

The above simply connotes that the UBA illegally recovered its loan exposure of N17,440,795.00 from the Okene Local Government intervention fund without the authorization of the Respondent.

The PW4 also gave evidence as contained in Page 588 of the Record of Appeal that there is nothing on PW4 – A to the effect that the collateral for the loan taken by the Respondent would be the Local Government’s fixed deposit. He also stated that there is nothing in PW4 – A3 where it is stated that the Local Government consented to the use of its deposit to offset the loan taken by the Respondent.

The PW4 also gave evidence that the transactions on the loan and crashing of fixed deposit of the Local Government were done by UBA staff. There is no document from the Respondent authorizing UBA to crash fixed deposit into his personal account.

From all the findings made above, there is no evidence pointing to the Respondent as having utilized the funds of the Okene Local Government in satisfaction of the indebtedness of the personal loan in the event of any default.

The DW6 who is the Respondent in his evidence contained in Page 694 of the Record of Appeal stated:
“When I obtained loan from UBA of N15,000,000.0, the agreement was to domicile my salary and every other allowance to UBA so as to repay the loan I have never authorized the bank to use the Local Government money to settle my loan (this was also confirmed by the PW4).…” Emphasis Mine.

Even Exhibit PW4 – A2 cannot be conclusive proof that Okene Local Government is the provider of security to the Respondent’s personal facility. The PW4 gave evidence as contained in page 585 of the Record of Appeal thus:
“Okene Local Government and one of my valued customers. Okene Local Government has two accounts with my bank. One is called Local Government subvention account while the other one is the special intervention account.”

The PW4 – A2 does not show whether the loan was to be serviced from either of the Local Government subvention account or the special intervention account. Even the cash collateral amount/investment amount contained in Exhibit PW4 – A2 is N300,000,000.

The DW6 during his cross-examination also denied that he wrote Exhibit PW4 – A. The burden then rest on the Appellant to prove otherwise which the Appellant failed to do. It is not enough for the Prosecution to suspect a person of having committed and offence, there must be evidence which identified the person accused with the offence. See the Case of NWATURUOCHA VS. STATE (2011) LPELR – 8119 (SC). In the absence of any proof, I would agree with the Respondent that the said Exhibit has no probative value.

The Appellant also argued that the trial Court completely ignored Exhibit PW1 – B which is a conclusive proof of conversion by the Respondent in arriving at its conclusion in respect of count 1. Looking at the said Exhibit which is a letter dated 6th April, 2010 and written from the Office of the National Security Adviser to the Appellant informing the Appellant of the Exhibit PW1 – A and for

the Appellant to treat the said petition, the amount stated to be involved from the synopsis of petition at page 740 of the Record of Appeal is “about N5 Billion” and not N17,440,795.00 subject matter of count 1. This in my view cannot be a conclusive proof of conversion of the sum of N17,440,795.00 by the Respondent.

The law is well established, that in criminal trial, proof of commission of the offence, by an accused person can be established in any of the following ways or methods, namely:
a. Through testimony of eye witness or witnesses who witnessed the act of the Commission of the offence, by the accused person; or
b. By Confessional statement made voluntarily by the person accused of the Commission of the offence, or
c. By circumstantial evidence.

However, in the case of proof by circumstantial evidence, that circumstantial evidence to be relied upon by the prosecution, must be credible, cogent and also must irresistibly point to the guilt of the accused and to no other person. See the case of SHUAIBU ABDU VS. THE STATE (2016) LPELR – 4461.

There is also nothing to show in Exhibits PW4 – A, PW4

– A1, PW4 – A2, PW4 – 3 and PW4 – A4 that the Respondent authorized any transfer from the fixed Deposit of the Local Government to offset his personal loan.

The Appellant has failed to link the accused to the crime in count 1 of the 4th Amended Charge.

Before I conclude on this issue, I will like to address the argument of the Respondent’s Counsel in paragraph 6.04 of the Respondent’s Brief of Argument that the oral evidence adduced by the PW1 and PW4 are mere hearsay evidence while Exhibits PW1 – E, PW4 – A, PW4 – A2, PW4A – 3, PW4A – 4 and PW1 – D constitute documentary hearsay and as such has no probative value.
These documents are document gotten by an investigating officer during investigation and as such does not need the maker to tender them. The Apex Court in the case of OLAOYE VS. STATE (2018) LPELR – 43601 (SC), reiterated thus:
“It has to be said that it is erroneous for the appellant to posit that the evidence of PW3 should be discountenanced being hearsay evidence. That submission is a misconception since PW3 is the investigating police officer who

has to narrate to the Court what transpired in the course of his investigation. In this process of stating what he found out in carrying out his inquiries, would be pieces of evidence which with another witness would be considered hearsay but from him since the Court has to know the synopsis of his investigative Journey it is direct evidence. See OBOT V STATE (2014) LPELR-23130 (CA).”

Going forward and in addition to my findings, I hereby adopt also, the findings and decision of the trial Court in holding that considering the clear wordings of the charge on which the Respondent is charged and the material/evidence supplied by the Prosecution, the case of the Appellant was not sufficiently made against the Respondent under this count. This issue is hereby resolved in favour of the Respondent.

ISSUE TWO
Whether having regard to the Charge and the totality of Evidence led at the Trial including the circumstances of this case, the appellant has not proved the guilt of the Respondent beyond reasonable doubt as required by law to warrant his conviction and sentence.

This issue is in respect of counts 2, 3, 4, 7, 8 and 9.

The Appellant’s Counsel has argued that the Respondent has failed to satisfactorily explain the various sources of lodgments into his account.

This Court will now consider the totality of evidence led in the proceeding but first, I would love to reproduce hereunder the said counts 2, 3, 4, 7, 8 and 9 being referred to under this issue and make my findings on each thus:
COUNT TWO
That you, Yahaya Abubakar ‘M’ while being the Chairman of Okene Local Government of Kogi State on the 23rd September, 2008 within the Jurisdiction of the Federal High Court, converted the sum of N2,500,000.00 (Two Million Five Hundred Thousand Naira Only), being an illegal act of abuse of office, with the aim of concealing its illicit origin and you thereby committed an offence contrary to Section 14 of the Money Laundering (Prohibition Act) 2004 and also punishable under Section 14 of the same Act.

The PW5 in his statement contained at page 601 of the Record of Appeal gave evidence thus:
“…there was lodgment of N10.5, by 3 different individuals in trenches of N3m, N5.05m and N2.05m. These lodgments are quite suspicious as they do

not reflect the earnings of the Accused person….”

The DW3, during his evidence contained at page 669 of the Record of Appeal gave evidence thus:
“On that date I mentioned, before the primary election, I became a member of a party PDP and when we were all aspirant, there is the tradition in my place that when you signify an interest in a post, people will be coming to you listing their problem to you. I do not have fund and the Accused person is a person I know very well and I ran to him for help and he gave me money which enabled me to purchase my nomination form. This money was not collected from him at a time as I took it bit by bit and after my primary, I collected money from him to for my election. We were told our election would be in September, 2007 but it was shifted to June 2008. When they conducted the election, our party won and I took loan from GTBank and I called him back and he was not around that time show he forwarded his account number to me and I paid the money into his account number to me and I paid the money into his account which is the sum of N2,500,000.00.”

The DW3 further testified that PW1 – C2

is the teller he used to pay the money into the Respondent’s account and that the handwriting and the phone number contained therein were his. During cross-examination contained at page 670 of the Record of Appeal, the DW3 gave evidence that at the time he took the money from the Respondent, he was not the chairman of the Okene Local Government.

DW6 during cross-examination as contained at page 695 of the Record of Appeal also corroborated the testimony of the DW3 thus:
“It is not true, the money that was paid into my account by Otaru Ismaila because during my aspiration, before I came in as a caretaker chairman, I have some political associates and my boys and when he was aspiring, he asked me for assistance. I do give him. At times he will come I will give him money and when he became a flag bearer, it was then I was appointed a caretaker chairman. After both of us were elected and he was councilor, he told me that he asked for a facility from GTB and that he does not want to be an ingrate and he told me that the money in question is N2,500,000.00 at the end of the day, he paid that amount into my account. It is never Local Government money.”

The above reproduced pieces of evidence clearly shows that the deposit of the said N2,500.000.00 into the account of the Respondent does not constitute an illegal act of abuse of office, with the aim of concealing its illicit origin as the origin of the said N2,500,000.00 was clearly stated in the evidence by the Respondent through his witnesses and which said origin didn’t even occur while he was in office as the Chairman of the Okene Local Government but involved a transaction that took place before election. The Appellant therefore did not prove this count against the Respondent. Having held thus, I agree with the decision of the learned trial judge and in addition, hold that this count 2 cannot be sustained against the Respondent.

COUNT THREE
That you, Yahaya Abubakar ‘M’, while being the Chairman of Okene Local Government of Kogi State, on 23rd October, 2008 within the Jurisdiction of the Federal High Court, converted the sum of N5,05.000.00 (Five Million and Fifty Naira Only), being an illegal act of abuse of office, with the aim of concealing its illicit origin and you thereby committed an offence

contrary to Section 14 (1) (a) of the Money Laundering (Prohibition Act) 2004 and also punishable under Section 14 (1) of the same Act.

The Prosecution tendered Exhibit DW6 – B contained at page 755 of the Record of Appeal to show lodgment into the UBA account of the Respondent by one Jimoh made on the 23rd October, 2008. However, the DW6 also gave evidence contained at page 695 of the Record of Appeal denying that fact thus:
“I do not have the knowledge of that N5,500,000.00. I never paid such amount into my account and nobody has paid such into my account or through my instruction.”

Upon the evidence of the Respondent, the Appellant did not elicit any other evidence to show that the Respondent actually authorized the deposit of N5,05.000.00 (Five Million and Fifty Naira Only) into the account of the Respondent.

There was also no evidence by the Prosecution to prove against the evidence of the Respondent that the sum of N5,05.000.00 was gotten as a result of an illegal act of abuse of office by the Respondent, with the aim of concealing its illicit origin. I once again agree with the decision of the trial Court on this Count.

I hereby hold that this count also do not succeed in proving the allegation therein against the Respondent.

COUNT FOUR
That you Yahaya Abubakar ‘M’, while being the Chairman of Okene Local Government of Kogi State, on 24th September, 2008 within the Jurisdiction of the Federal High Court, converted the sum of N1,000,000.00 (One Million Naira Only), being an illegal act of abuse of office, with the aim of concealing its illicit origin and you thereby committed an offence contrary to Section 14 (1) (a) of the Money Laundering (Prohibition Act) 2004 and also punishable under Section 14 (1) of the same Act.

The DW2, Raji Ismaila during his evidence contained at page 654 of the Record of Appeal stated thus:
“I collected money from him during my aspiration to be a Counsellor. I was then a student at Kogi State University, Ayingba and he assisted me. I promised him that I will pay back if I succeed. When I became a Counsellor, I took a loan from Guaranty Trust Bank and paid it back to his bank account.”

Looking at the deposit slip contained at page 746 of the Record of Appeal, the sum of N1,000,000.00 was deposited by

Hon. A. Smaila to the UBA account of the receiver, Alhaji Yahaya Jimoh who happens to be the Respondent.

The Respondent as DW6 during his evidence contained at page 696 of the Record of Appeal also gave evidence to confirm the evidence by the DW2 as to the origin of the N1,000,000.00 thus:
“The money in question was paid into my account from one of my Counsellor of which I lend money during his aspiration his name Ismaila Raji… he also told me that he want to settle the money that he collected from me and it was never a Local Government money.”

These pieces of evidence given by both the DW2 and DW6 explains the origin of the N1,000,000.00 in this count and that it is not from an illegal abuse of office by the Respondent. The Appellant had failed to prove otherwise. This count can also not be sustained.

COUNT SEVEN
That you Yahaya Abubakar ‘M’ while being the Chairman of Okene Local Government of Kogi State on 15th January, 2009 within the Jurisdiction of the Federal High Court, converted the sum of N10,208.000.00 (Ten Million, Two Hundred and Eight Thousand Naira Only), being an illegal act of abuse of

office, with the aim of concealing its illicit origin and you thereby committed an offence Contrary to Section 14 (1) (a) of the Money Laundering (Prohibition Act) 2004 and also punishable under Section 14 (1) of the same Act.

The Respondent as the DW6 in his evidence in proof of count 1 contained at page 697 of the Record of Appeal testified that he applied for a loan at UBA and they paid the money into his account and the money paid into the account was not that amount and that they removed their charges and his account was credited with N9,000,000.00 and it was the bank staff that paid the loan into his account and it was not local government loan.

The Appellant failed to prove that the Appellant converted the sum of N10,208,000.00 which is an illegal act of abuse of office, with the aim of concealing its illicit origin. The Exhibit DW6 – B is not conclusive proof of count 8. The said Exhibit only reveals a debit of N10,208,000.00 from the UBA account of the Respondent on the 19th January, 2009 by one Gbenga on the instruction of Yahaya Jimoh who happens to be the Respondent (See Page 756 of the Record of Appeal). The Appellant has argued

that the said lodgment was incompatible with his earnings and emolument. However, nothing in that Exhibit links the Respondent to the Crime in Count Seven. In essence, this Count must fail.

COUNT EIGHT
That you Yahaya Abubakar ‘M’ while being the Chairman of Okene Local Government of Kogi State on 23rd March, 2009 within the Jurisdiction of the Federal High Court, converted the sum of N15,000.000.00 (Fifteen Million Naira Only) being an illegal act of abuse of office, with the aim of concealing its illicit origin and you thereby committed an offence Contrary to Section 14 (1) of the Money Laundering (Prohibition Act) 2004 and also punishable under Section 14 (1) of the same Act.

My findings made under issue two on count one has succinctly covered for this count as the said N15,000,000.00 stated here is the subject matter of the loan which the Respondent was said to have gotten from the fixed deposit to service his personal loan. The learned trial judge has accurately covered my thoughts and I would not hesitate to adopt the findings of the learned trial judge on this Count in its entirety and in holding that the evidence of the Appellant cannot sustain this count.

COUNT NINE
That you Yahaya Abubakar ‘M’ while being the Chairman of Okene Local Government Area of Kogi State on 9th November, 2009 within the Jurisdiction of the Federal High Court, converted the sum of N3,000.000.00 (Three Million Naira Only), being an illegal act of abuse of office, with the aim of concealing its illicit origin and you thereby committed an offence contrary to Section 14 of the Money Laundering (Prohibition Act) 2004 and also punishable under Section 14 of the same Act.

Contained at page 747 of the Record of Appeal is the deposit slip of N3,000,000.00 by Abdul is made to the UBA account of the Respondent. The Respondent in his evidence contained at page 697 of the Record of Appeal explained the said deposit thus:
“It is not the Local Government money. I was to travel sometime along with my colleagues and one of the requirements was that a certain minimum amount of money will have to be in my account and I was in Abuja for Visa and called my account officer that I do not have sufficient amount and he called one of the staff in Abuja to credit my account and when I did

not get the visa, I called him back and he withdrew the money.”

No further evidence was given by the Appellant to disprove the evidence of the Respondent to be otherwise and linking him to the crime in this count. It is my well-considered view in addition to the finding of the trial Court at page 911 – 912 of the Record of Appeal that the evidence of the Prosecution can therefore not sustain this count.

In summary therefore and having in mind my findings therefore on all the counts under this issue, the Appellant had failed to show the conversion of the monies in these counts by the Respondent to show an illegal act, of abuse of office, with the aim of concealing its illicit origin. The Respondent in his evidence under these counts showed how the monies were gotten. While the Prosecution failed whole fully to give sufficient and credible evidence linking the Respondent to the counts examined under this issue.

Considering all my findings therefore, I am of the strong and well considered view that having regard to the counts of the charge against the Appellant already considered above and the totality of Evidence led at the trial

including the circumstances of this case, the Appellant has not proved the guilt of the Respondent beyond reasonable doubt as required by law to warrant his conviction and sentence on these counts.

ISSUE THREE
Whether considering the clear provision of Section 159 of the Criminal Procedure Act, the lower Court did not fall into a serious/grave error by striking out Count 5 of the Charge for duplicity.

While considering count five and six as shall be reproduced hereunder, the trial Court made findings contained at pages 899 – 900 of the Record of Appeal and consequently struck out count 5 and held thus:
“The Particulars are more suitable for Count 6 in addition to the other counts. This means the Defendant will now answer to Counts 1, 2, 3, 4, 6, 7, 8 and 9 on the charge sheet.”

The said count 5 and 6 are reproduced thus:
“COUNT FIVE
That you, Yahaya Abubakar ‘M’, while being the Chairman of Okene Local Government of Kogi State on between 2008 and 4th June, 2010 within the Jurisdiction of the Federal High Court with intent to defraud obtained from other persons by false pretences, the sum

of N8,805,000.91 (Eight Million Eight Hundred and Five Thousand and Ninety One Kobo) and thereby committed an offence contrary to Section 1 (1) (a) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006 and also punishable under Section 1 (3) of the same Act.”
COUNT SIX
That you Yahaya Abubakar ‘M’ while being the Chairman of Okene Local Government of Kogi State on between 2008 and 4th June, 2010 within the Jurisdiction of the Federal High Court, under the disguise of deducting value added tax (VAT) fraudulently converted the sum of N8,805,000.91 (Eight Million Eight Hundred and Five Thousand Nine Hundred and Ninety One Kobo) and thereby committed an offence contrary to Section 40 of the Federal Inland Revenue Act 2007 and also punishable under Section 40 of the same Act.”

Section 1(1)(a) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006 and Section 1(3) of the same Act provides:
“1 (1) Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud.
(a) obtains, from any other person, in Nigeria or in any other

country for himself or any other person;
3. A person who commits an offence under Subsection (1) or (2) of this section is liable on conviction to imprisonment for a term of not more than 20 years and not less than seven years without the option of a fine.

On the other hand, Section 40 of the Federal Inland Revenue Act 2007 and Section 40 of the same Act provide:
“40. Any person who being obliged to deduct any tax under this Act or the laws listed in the First Schedule to this Act, but fails to deduct, or having deducted, fails to pay to the Service within 30 days from the date the amount was deducted or the time the duty to deduct arose, commits an offence and shall, upon conviction, be liable to pay the tax withheld or not remitted in addition to a penalty of 10 per cent of the tax withheld or not remitted per annum and interest at the prevailing Central Bank of Nigeria minimum re-discount rate and imprisonment for period of not more than three years.”

By the clear wordings of both Section 1(1)(a) and (3) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006 and Section 40 of the Federal Inland Revenue Act 2007,

the offences for which the Respondent was charged under Count 5 and 6 Respectively are both separate and different offences which has been provided for under the separate Laws and in my humble opinion, this does not offend the principle against duplicity of charge.
The general rule is that for every distinct offence with which a person is charged, there must be a separate charge, and the charge must be contained in a distinct count in the charge sheet when the rule is contravened, the charge is said to be bad for duplicity.
Also, by virtue of Section 159 of the Criminal Procedure Act which provides thus:
“If the acts or omission alleged constitute an offence falling within two or more separate definitions in any written law for the time being in force under which offences are defined or punished the person accused of them may be charged with and tried at one trial for each of such offences.”
Considering the above and the meaning of duplicity of charge, the said count 5 and count 6 can be sustained under different count in the charge as it is and the Defendant can be tried on these counts distinctly. The trial judge was therefore in

error when he struck out the count 5 and sustained count 6 on grounds of duplicity. Even if I assume that he was right, he did not give any sufficient reasoning to back of his decision of striking out the said counts especially how he arrived at choosing to strike out count 5 and make his findings and decision of count 6 instead. I hereby in the interest of justice, set aside the decision of the trial judge on this point.

That having been said, this Court will now consider both evidence of the Appellant and Respondent on count 5 and 6.

Under count 5, the purport of the offence therein is that:
The Respondent must have by false pretense and with intent to defraud, obtain from any other person, in Nigeria or in any other country for himself or any other person. This simply mean:
i. There exist false pretense by accused
ii. Intent to defraud
iii. Obtain from any other person in Nigeria or in any other Country.
iv. The result of the false pretense and intent to defraud and obtain must be for the benefit of the accused or any for any other person.

All the above must co-exist to ground a punishment upon Count 5.

The total sum under count 5 that the Respondent was alleged to have defrauded from other persons by false pretenses is N8,805,000.91 (Eight Million Eight Hundred and Five Thousand and Ninety-One Kobo). Looking at the Record of Appeal before this Court at page 582, the PW3 who is a staff of the FIRS, Kogi State, gave evidence thus: “As at the date the letter of June, 2010 was made the indebtedness of Okene Local Government to the tune of N8,805,000.91K. This amount was for 2008 to 4th June, 2010. We arrived at this sum by a verification exercise of the financial records of the Local Government.”

During his evidence in cross-examination contained at page 584 of the Record of Appeal he further gave evidence that:
“…Under the law setting up FIRS, there is provision for recovery of VAT. The Procedure in my Department is that we write a reminder of the liabilities to the legal Department. The amount of N8Million is a debt that Okene Local Government is owing to the FIRS.”

Also, the PW1 – B which is an FIRS letter head paper shows liability, Payment and outstanding in respect of Value Added Tax payments. These pieces of

evidence though in relation to the sum of N8,805,000.91 (Eight Million Eight Hundred and Five Thousand and Ninety-One Kobo) contained in count 5, it does not relate to the particulars of the offence contained in count 5 but in respect of liability, payment and outstanding in respect of value added tax payments by the Okene Local Government. The pieces of evidence by the prosecution cannot therefore support the offence in count 5.

In respect to count 6 of the charge, the purport of the offence is that the person charged with the offence must be the person being obliged to deduct the tax. The question now: is the Respondent who was the Chairman of the Okene Local Government, the person obliged to deduct the tax of the Local Government?

The PW3 during Cross-examination at page 583 gave evidence thus:
“I cannot confirm that Okene Local Government remitted any VAT to FIRS on 15th June, 2010. I know Mr. Reuben Njoku. He is the tax Controller FIRS Lokoja. I am familiar with his signature….”

He further gave evidence contained at page 584 of the Record of Appeal thus:
“…it is not the accused person that is indebted

personally but the Local Government….”

Even Exhibit PW1 – B only shows “Okene Local Government” outstanding of N8,805,998,91.

The DW4, gave evidence contained on page 673 – 676 of the Record of Appeal and nothing in the evidence pointed at the Respondent as the cause of the alleged tax liabilities of the Okene Local Government. Even the DW6 in his evidence contained at page 696 of the Record of Appeal stated that it is not his schedule to remit money to the FIRS.

All these pieces of evidence do not in any way point fingers to the Respondent as the person responsible for deducting and remitting value added tax to the FIRS or that he prevented same from happening like the trial judge has held. The prosecution has once again failed to link the Respondent to the commission of the crime contained in count 6. I hereby, in addition to my findings herein, adopt the decision of the learned trial judge on this point.

It is my conclusion on this issue three therefore that considering the clear provision of Section 159 of the Criminal Procedure Act, the lower Court fell into a serious/grave error by striking out

count 5 of the charge for duplicity which has occasioned my decision to set aside the said decision of the trial Court as I already did. However, considering my findings on count 5 and 6, this Issue is partly resolved in favour of both the Appellant and the Respondent.

ISSUE FOUR
Juxtaposing the mandatory provision of Section 40 of the Federal Inland Revenue Service (Establishment) Act, 2007 with the facts of this case, whether the Respondent in his capacity as the Executive Chairman of Okene Local government, by deducting Value Added Tax under his watch and failing to remit same to the appropriate tax authority is not personally liable for the offence so charged.

There is no need to stress on this Issue as I have already considered same under issue three and under my consideration of count 6 of the charge. I wish to adopt my argument therein in addition to that of the learned trial judge contained at page 906 – 908 of the Record of Appeal and I hereby hold that juxtaposing the mandatory provision of Section 40 of the Federal Inland Revenue Service (Establishment) Act, 2007 with the facts of this case and the evidence adduced, the

Respondent in his capacity as the Executive Chairman of Okene Local government, is not personally liable for the deduction and remittance of Value Added Tax and thus not liable for the offence so charged. This issue is resolved in favour of the Respondent.

In conclusion, having made findings on the competency of the Notice of Appeal as I have done in my consideration of the Notice of Preliminary Objection filed by the Respondent, it is my humble view which I strongly hold that the Notice of Appeal being the bedrock of this entire appeal and filed by the Appellant is incompetent same failing to comply with the provisions of Order 17 Rule 3(1) of the Court of Appeal Rules, 2016 and has thus robbed this Court of the jurisdiction to entertain this appeal, not minding my consideration of the issues for determination in this appeal which I have done in the interest of justice.

This appeal is hereby struck out in its entirety. I make no order as to cost.

CROSS APPEAL
The Cross-Appellant filed a Notice of Cross-Appeal on the 16th February, 2018 which contained ten (10) Grounds of Appeal. This cross-appeal was against some rulings in Charge

No: CA/A/401C/2016 delivered by the trial judge, Honourable Justice I. E. Ekwo of the Federal High Court sitting in Lokoja.

Parties filed their respective briefs of arguments. The Cross-Appellant’s brief of argument is dated 12th, February 2018 and settled by his Counsel, Abdullahi Aliyu, SAN wherein he raised Six (6) issues for the determination of the Cross-Appeal.

On the other hand, the Cross-Respondent filed its brief of argument dated 28th February, 2018 and settled by its Counsel, Wahab Shittu, Esq., wherein he adopted the Cross-Appellant’s issues for determination.
The Cross-Appellant’s issues for determination are:
i. Whether the Learned trial judge was right to admit in evidence Exhibits P.W.1-A, P.W.1-A1, P.W.1-A2 and P.W.1-B when proper foundation for the admissibility of the documents had not been laid and when Exhibit P.W.1-B was written during the pendency of the trial. (Grounds 1, 2 and 5 of the Notice and Grounds of Appeal)
ii. Whether the Learned trial judge was right in admitting Exhibit P.W.1-D and P.W.2-A1 when the conditions laid down in Sections 89(h) and 90(1)(e) of the Evidence Act had not been satisfied.

iii. Whether the Learned trial judge was right in admitting Exhibits P.W.1-D, P.W.4-A, P.W.4-A1, P.W.4-A2 and P.W.1-A3 and P.W.4-A4 in evidence when the said documents are photocopies of certified True Copies of Public documents and had no evidence that proper certification fees had been paid. (Grounds 3 and 6 of the Notice and Grounds of Appeal).
iv. Whether the Learned trial judge was right in holding that the prosecution had established all the essential ingredients of the offences charged in Counts 2, 3, 4, 5, 6, 7 and 9 of the 4th Amended charge at the close of the case of the Prosecution. (Ground 7 of the Notice and Grounds of Appeal)
v. Whether Counts 1 and 8 contained in the 4th Amended charge were bad for being repetitive and duplication of each other. (Ground 9 of the Notice and Grounds of Appeal)
vi. Whether the Learned trial judge was right to over-rule the no-case submission made for the Cross-Appellant in respect of counts 1 and 8 of the 4th Amended charge when, on the legally admissible evidence before the learned trial judge, on Prima facie case had been established against him on those counts. (Grounds 8 and 10 of the Notice and Grounds of Appeal).

In relation to issue one, the Cross-Appellant explained all the exhibits thus:
P.W.1A was written by an amorphous body called Ebira Peace and Human Rights Watch to the National Security Adviser and is a petition alleging various acts of fraud amounting to about 5Billion Naira against the cross-appellant signed by one Abdulrahman Sanni.
P.W.1-A1 is a letter from the office of the National Security Adviser forwarding the petition to the Chairman of the EFCC signed by one M. Sanni.
P.W.1-A2 is a synopsis of the petition. PW.1-B is a letter written by the FIRS signed by one Umar B. A.

The Cross Appellant’s Counsel submitted that the documents were tendered by Mr. Rueben Omosigho who is a Police Officer attached to the EFCC. Additionally, counsel submitted that the said Officer was not the maker of these documents and none of the people that signed the documents were called to give evidence at the trial. Counsel then submitted that though he objected to the admissibility of P.W.1-A, P.W.1-A1 and P.W.1-A2, the trial judge said he would admit them as they establish the substance of the

evidence of PW1 and that they were certified true copies.

Counsel for the Cross-Appellant also submitted that in criminal trials, documents will be inadmissible in evidence to establish the truth of facts contained unless the maker is called to give evidence. Counsel relied and reproduced Sections 37 and 38 of the Evidence Act, 2011. Counsel then argued that from the sections above, letters such as P.W.1-A, P.W.1-A1, P.W.1-A2 and P.W.1-B are inadmissible to establish the truth of the facts stated therein. Counsel relied on OPOLO VS. THE STATE (1977) ALL NLR 312; AGWUNEME VS. EZE (1990) 3 NWLR (PT. 137) 242; LATEEF VS. F. R. N. (2010) 37 WRN 85 and stated that he is not unaware of exceptions to the sections cited above but ultimately states that none of the exceptions apply to this case.

The Cross-Appellant’s counsel further submitted that a careful look at the official endorsement of the 1st charge sheet filed by the Cross-Respondent shows it was filed on the 31st of March, 2010 and this can also be seen from the cross-examination of PW5, however PW1-B was written on the 4th of June, 2010 after trial had commenced. Counsel cited and relied on

Section 83(3) of the Evidence Act, 2011. Furthermore, counsel argued that count 6 of the 4th Amended charge which PW1-B sought to establish shows that the sum of N8,805,998 which the Cross-Appellant purportedly converted, allegedly belongs to the Federal Inland Revenue Service (FIRS) and the writer of Exhibit PW1-B is a staff of FIRS.

Counsel then argued that since the FIRS wrote the letter (Exhibit PW1-B), they should be regarded as an independent, dispassionate, unbiased or impartial person as to render any document prepared by her during the pendency of an action to be legally admissible. Reference was made to the cases of OGIDI & ORS VS. CHIEF DANIEL B. IGBA (1999) 10 NWLR (PT. 621) 4; W. D. N. LTD VS. OYIBO (1992) 5 NWLR (PT. 239) 77; UGWU VS. ARARUME (2007) 12 NWLR (PT. 1048) 367.

Counsel also stressed that Exhibit PW1-B is hearsay as PW3 stated that:
“We arrived at this sum by verification exercise of the financial records of the Local Government” and that under cross-examination the witness said “I was not in the verification team. Any information I have about verification exercise is from what I am told or what I read

from document…we have a verification report but I do not have it here.”

The Cross Appellant’s Counsel further argued that from the above evidence, the information contained in Exhibit PW1-B were extracts from the content of a verification report which was not tendered before the learned trial judge. As such, counsel submitted that neither PW1 nor PW3 took part in the said verification as such Exhibit PW1-B which was derived from the verification constitutes hearsay and is inadmissible under Section 37 and 38 of the Evidence Act.

In arguing issue two, Counsel to the Cross-Appellant submitted that Exhibits PW1-D and PW2-A1 are purported to be statements of account maintained by the Cross-Appellant with UBA Plc and Bank PHB Plc as such these documents being extracts of statement of account forming part of the books of a bank, the party seeking to tender the document must comply with the condition laid down in Sections 89(h) and 90(1)(e) of the Evidence Act, 2011. Counsel further submitted that what can be understood from the two sections mentioned above is that for copies of Bankers’ Book to be admissible, four conditions

must be met which are:
i. The book in which the entries were made was one of the ordinary books of the bank;
ii. The entry was made in the usual and ordinary course of business;
iii. The books from which the entries were made is in the custody and under the control of the bank and;
iv. The copy must have been examined with the original entry and found to be correct.
See UNITY LIFE & FIRE INSURANCE LTD VS. I.B.W.A. (2001) LPELR – 3412; CB-TRUST CO. LTD VS. FRN (2017) (Unreported) CA/L/603AC/2016 of 21/11/2017.

The Cross Appellant’s Counsel then referred to the evidence of PW1 and PW2 (see pages 565 – 568 and 580 – 581 of the record of appeal) to show that the witnesses did not attempt to satisfy the requirements of Sections 89(h) and 90(1)(e) of the Evidence Act, 2011 before tendering the documents. Counsel therefore submitted that the documents are inadmissible and ought not to have been admitted by the trial judge. Counsel referred this Court to the cases of AZUBUIKE VS. DIAMOND BANK PLC (2014) 3 NWLR (PT. 1393) 116; AKANMU VS. CO-OPERATIVE BANK (2006) 2 NWLR (PT. 963) 82.

Under Issue Three, the

Cross Appellant’s Counsel argued that Exhibit PW1-D is a letter from UBA Plc forwarding some documents to the EFCC and that what the prosecution tendered at the trial were photocopies of Certified True Copies. Counsel further argued that PW1-D, PW4-A1, PW4-A2 and PW1-A3 and PW4-A4 did not comply with the requirements of certification under Section 104 of the Evidence Act. Counsel then outlined the valid way of certification under Section 104 thus:
i. The date of certification;
ii. The name of the officer who certified the document;
iii. The Official title of the officer who Certified the Document
iv. Evidence of payment of Certification fees; and
v. If the officer uses a seal, such seal must be affixed.

He referred this Court to the case of GTB VS. TABIK INVESTMENTS LTD (2011) ALL FWLR (PT. 602) 1592. Counsel further submitted that there was no evidence that appropriate certification fees had been paid and in the absence of that, the documents remain legally inadmissible. He further referred this Court to the case of BIYE VS. BIYE (Unreported) CA/K/145/2008 of 21/5/2014 .

Regarding issue four, the Cross-Appellant’s counsel submitted that the findings of learned trial judge that the prosecution had established a prima facie case is based on the documentary evidence which are legally inadmissible in evidence and should not have formed any basis of the finding of the trial Court. That where the wrongly admitted documents are pivotal to the findings made by the trial Court, the findings become baseless since the documents must be expunged from the record. See AKANMU VS. COOPERATIVE BANK PLC (2005) LPELR – 7517.

Counsel concluded that since the documents were inadmissible, they ought to be expunged and that the findings of the Court below lack basis and must be set aside. The Cross Appellant’s Counsel further stated that, assuming without conceding that the documents were legally admissible, the prosecution did not at the close of their case prove the essential ingredients of the offences contained in counts 2, 3, 4, 5, 6, 7 and 9 of the 4th Amended Charge.

The Cross Appellant’s Counsel also argued that the law is elementary that a no-case submission may be made and upheld where:
i. There has been no evidence to prove an

essential element in the alleged offence.
ii. When the evidence adduced by the Prosecution has been so discredited as a result of Cross-examination or so manifestly unreliable that no reasonable tribunal could safety convict on it.

The Cross Appellant’s Counsel also argued that the reoccurring decimal in Counts 2, 3, 4, 5, 6, 7 and 9 is that the Cross-Appellant had converted the various sums specified in those counts in illegal abuse of office with the aim of concealing its illicit origin contrary to Section 14 of the Money Laundering (Prohibition) Act. Counsel cited the case of UDEOGU VS. F.R.N (2016) ALL FWLR (PT. 837) 588 where the ingredients of Section 14(1)(a) were given thus:
(i) The accused converted or transferred resources or property;
(ii) The resources or property must have been derived directly or indirectly from drugs related offences or any other crime or illegal act;
(iii) The conversion or transfer of the resources must be with the aim of;
(a) Concealing or disguising the illicit origin of the resources or property; or
(b) Aiding any person involved in any of the acts of drug related offences; or any

other crime or illegal acts so as to evade the illegal consequences of his action.

The Cross Appellant’s Counsel then argued that the prosecution called 5 witnesses to prove the offence under Section 14 of the Money Laundering (Prohibition) Act but that all they did was show entry into the account of the Cross-Appellant without establishing the original ownership of the money since they claimed it belonged to Okene Local Government. Additionally, that the prosecution had to show that the money was derived either directly or indirectly from illegal acts. On this point, he cited the case of FRN VS. YAHAYA (2016) 2 NWLR (PT. 1496) 252. Counsel to the Cross Appellant also argued that there is no scintilla of evidence emanating from Exhibits P.W.1-A, P.W.1-A1, P.W.1-A2, P.W.1-C, P.W.1-C1, P.W.1-C2, P.W.1-D and P.W.4-A1-A4 to prove the money in counts 2, 3, 4, 7 and 9 belonged to Okene Local Government.

As it relates to count 5, the Cross-Appellant’s Counsel argued that the prosecution did not prove the essential ingredients of count 5. Counsel stated the essential ingredients of the offence under Section 1(1) of the Advance Fee Fraud Act and

argued that from the adduced evidence, none of the ingredients were established. The Cross-Appellant’s Counsel further argued that the evidence must show that the accused obtained the money through a pretense knowing it to be false. Finally, counsel argued that the evidence adduced by PW1, PW3 and PW5 did not establish the essential ingredients of the offence of obtaining by false pretense under Section 1(1)(a) of the Advanced Fee Fraud and other Related Offences 2006.

For count 6 which relates to Section 40 of the Federal Inland Revenue Act 2007, the Cross Appellant’s Counsel also argued that from the evidence adduced by the prosecution given by PW1, PW3 and PW5, there was no evidence before the trial Court to establish that the Cross-Appellant was obliged to deduct tax from anybody either under the Act or any other law listed in the First Schedule or that the Cross-Appellant had failed to deduct the said tax or that he had deducted the tax but failed to remit to the FIRS within the 30 days from the date of deduction.

The Cross Appellant’s Counsel concluded that, in the clear words of the section, the prosecution must first

establish that the Cross-Appellant is the person who had a duty to deduct the tax and there is no evidence of this so the prosecution did not prove the essential ingredients of the offence under Section 40 of the Federal Inland Revenue Act 2007.

In arguing issue five, the Cross Appellant’s Counsel submitted that the allegations in both counts 1 and 8 are targeted at the same purported act by the Cross-Appellant and that an accused person in a criminal trial is not to be tried twice for the same act. That in essence the charge in count 1 which relates to N15 Million used by the Cross-Appellant to offset his personal loan and count 8, relates to the same N15 Million. Counsel further argued that where the charge is repetitive it will be unfair and unjust and the trial judge ought to have struck one of the counts out. Reference was made to the case of FRN VS. BODUNDE (2016) ALL FWLR.

Finally, as it relates to count six, the Cross Appellant’s Counsel argued that the prosecution did not establish the essential ingredients of counts 1 and 8 of the charge. That in this case, what the prosecution had established is that the staff of UBA had used

funds belonging to the Okene Local Government to offset the loan of the cross-appellant and that none of the staff of the UBA who carried out transaction could explain the circumstances of the transaction. The Cross Appellant’s Counsel further stated that there is no evidence that the Cross-Appellant authorized the transaction as such the prosecution did not establish the elements of the offence in Section 14 of the Money Laundering Act.

On the other hand, the Cross-Respondent adopted the issues formulated by the Cross-Appellant for the determination of this cross-appeal.

In reply to the first issue, counsel for the Cross-Respondent argued that there is a distinction between admissibility of a statement made by a witness which seeks to establish the truth of what is contained in a statement as opposed to establishing by evidence that the statement was made. Counsel further argued that in the former, authorities have agreed that it would constitute hearsay, while in the latter it does not constitute hearsay. Secondly, that as it relates to the issue of PW1-A, PW1-A1 and PW1-A2 not been tendered by the maker, counsel relied on GABRIEL DAUDU VS. FRN

delivered 26th January 2018 to argue that it is not in all cases that documentary must be tendered by its maker and that documentary evidence can be admitted in absence of the maker. Reference was made to the case of ECOBANK NIG. PLC VS. ELDER DOMINIC EKPERIKPE (2013) LPELR – 20327 (CA).

In reply to issue two, the Cross Respondent’s counsel argued that counsel for the Cross-Appellant did not avert his mind to Section 89(e) of the Evidence Act which allows for the secondary evidence to be given when the original is a public document within the meaning of Section 102. Counsel further argued that a statement of account is a public record being official acts of official bodies and fundamentally also qualifying as such being “public records kept in Nigeria of private documents.”

The Cross Respondent’s Counsel also argued that secondary evidence of documents is admissible by virtue of Section 89(e) of Evidence Act 2011 as such the statement of account tendered in the proceedings are admissible having been properly certified and tendered by appropriate authority. On this point, counsel cited the cases of NBA VS. KALEJAIYE

(2016) 6 NWLR (PT. 1508) 393; R VS. VANLERBERGHE (1979) 6 C.R. (3d) 222; NARINDEX LIMITED VS. N.I.C.M.B. LIMITED (2001) 4 SCNJ 208.

As it relates to issue 3, the Cross Respondent’s counsel while relying on the cases of DICKSON VS. SYLVA & ORS (2016) LPELR – 41257 (SC) and GABRIEL DAUDU VS. FRN delivered 26th January, 2018 argued that as it relates to Section 84 of the Evidence Act, where a government agency gets a computer generated evidence from a bank, it is presumed that the bank certified that the contents are correct. Also, that where the Cross Appellant relies on the content of the statement to his defence then it amounts to approbating and reprobating.

In reply to issue four which deals with the no-case submission, the Cross Respondent’s counsel after relying on plethora of cases argued that it established a prima facie case against the Cross Appellant in the criminal case before the lower Court. Counsel then went into what transpired from the evidence of the case which is that the Cross-Appellant as the Chairman of Okene Local Government while serving sought a personal loan from the bank and used the Okene Local

Government Account as collateral to service the loan. Counsel further argued that the Cross Appellant also operated another UBA Account No. 1009139777 containing questionable lodgments forming basis of counts 2, 3, 4, 7, 8 and 9 as these monies were outside the Cross Appellant’s emoluments and entitlements which are proof of corrupt practices by the Appellant while in office.

Counsel to the Appellant argued that they called 5 witnesses during the trial process. That the culpability of the Cross Appellant in respect of count 1 arises from the use of the local government fund to secure his personal facility with UBA. That this can be seen by Exhibit PW1-E, a certificate of deposit showing that Okene Special Intervention fund in the sum of N15 Million was deposited with the same bank in a fixed deposit.

The Cross Respondent’s Counsel also argued that by Exhibits PW4-A, PW4-A1, PW4-A2, PW4-A3 and PW4-A4, it can be seen that the Cross-Appellant expressly donated consent to the bank to utilize the funds of the local government in satisfaction of the indebtedness of his personal loan in event of default. That the Cross-Appellant executed all

documents for loan exemplified by PW4-A, PW4-A1, PW4-A2, PW4-A3 and PW4-A4 with all his eyes wide open and should be bound by the consequences of his illegal actions.

In respect to count 4, the Cross-Respondent’s Counsel argued that the Cross Respondent adduced evidence by Exhibit DW6-B that a certain person named HON deposited cash and the Cross-Respondent did not explain the relation between him and the said HON which gives the inference that it was dirty money arising from illicit transaction. That there were further deposits of 5 Million and 1 Million made by one Khadijat Lamidi into the private account of the Cross-Respondent which were not captured in the charge but reveal legal admissible evidence marked Exhibit PW2-A and PW2-A1 which the Court is entitled to convict for by virtue of Section 223 of ACJA.

For count 5 and 6, the Cross-Respondent’s Counsel argued that the Cross Respondent adduced evidence by Exhibit PW1-B to the effect that the Federal Inland Revenue on the 4th day of June 2010 in a written communication with the chairman of EFCC confirmed that the liability in Respect of VAT due to FIRS was N8,805,000.91. That the

Cross-Respondent presided over the affairs of the Okene Local Government over the period of July 2008 to sometimes in 2010 which is the period exemplified by the Exhibit PW1-B. On count 7, the Cross-Respondent adduced evidence by Exhibit DW6-B proving that on the 15th day of January, 2009 one Oiza made cash deposit of N10,208,000 into the Cross-Appellant’s private account which the Cross-Appellant could not explain.

The Cross-Respondent’s Counsel argued that they had adduced evidence to prove that the huge lodgments into the Cross-Appellant’s account given his status as a public officer with specific income without satisfactory explanations was an indication that the funds were laundered, illicit or doubtful origin. The Cross Respondent’s Counsel further argued that the foundation of this conclusion is backed by Section 19 of the EFCC Act 2004 and that the Cross-Appellant has the duty to explain the sources of the lodgments in his account. On this point, counsel cited the case of EMEKA VS. THE STATE (2001) 32 WRN 37 SC; KAZEEM VS. THE STATE (2009) 29 WRN 1 – 176.

In conclusion, the Cross Respondent’s counsel argued

that the Cross-Respondent either directly through evidential materials or indirectly by inferences showed that the Cross-Appellant through the various lodgments into his account outside his legitimate earnings stands guilty of money laundering.

The Cross Respondent’s Counsel as it relates to count 8, argued that it adduced evidence by Exhibit DW6-B proving that on 23rd March, 2009 one IRO made a transfer deposit of N15,000,000 into the Cross-Appellant’s private account and that the Cross-Appellant did not explain the relation between him and the said IRO which gives the inference that it was dirty money arising from illicit transaction.

In respect to count 9, the Cross-Respondent’s Counsel argued that the Cross Respondent adduced evidence by Exhibit DW6-B proving that on 9th November, 2009 an undisclosed person made a transfer deposit of N3,000,000 into the Cross-Appellant’s private account and the Cross-Appellant did not explain the source of the money which gives the inference that it was dirty money arising from illicit transaction.

In conclusion, the Cross-Respondent’s Counsel submitted that given all the

damming evidence against the Cross-Appellant at the lower Court, the contention that there was no prima facie case entitling the Cross-Appellant to enter into his defence cannot be sustained. On this point, counsel cited GABRIEL DAUDU VS. FRN delivered 26th January, 2018 in length and submitted that the Cross Respondent had adduced substantial, credible, believable and prima facie legally admissible evidential materials which shows that there is indeed a case to answer by the Cross-Appellant.

The Cross-Appellant filed a reply brief to the Cross-Respondent’s brief of argument and submitted that for the case of GABRIEL DAUDU VS. FRN Appeal No. SC/172/2017 and Section 19(3) of the Money Laundering Act to apply to this case, there must be evidence that the amount paid into the account of the accused is disproportionate to his known source of income. That for the prosecution to invoke the provisions of Section 19(3) of the EFCC Act, there must be evidence of the known source of income of the accused. Additionally, that from the totality of the evidence of the prosecution there is nothing to show what the income of the cross-appellant was in order to

enable the trial Court infer that the amount paid to his account is disproportionate to his source of income.

The Cross Appellant’s Counsel then submitted that a careful reading of Section 19(3) of the Money Laundering Act will reveal that the fact that there are suspicious lodgments into the Cross-Appellant’s account is not one of the ingredients of the offence created under Section 14(1) of the same Act. Counsel further argued that every relevant ingredient of the offence must be established as it is corroborative in nature.

The Cross Appellant’s Counsel further argued that it will be ineffective if the evidence led by the prosecution do not establish any of the essential elements of the offence against the person standing trial. That in this case the prosecution did not establish all the ingredients of the offence.

The Cross Appellant’s Counsel also argued that the recurring decimal “which he cannot satisfactory account” is an issue that cannot arise at the stage of deciding the case at no-case submission but can only arise at the stage of deciding the case on the merit, after the defendant had led

evidence explaining the lodgments that the Court will consider if its satisfactory or not. Counsel also argued that the law had not changed as such for the prosecution to have a prima facie case they must establish ingredients of the offence. On this point, counsel cited the case of OMATSEYE VS. FRN (2017) LPELR – 42719 (CA).

The Cross Appellant’s Counsel then outlined and listed five ways in which the case of GABRIEL DAUDU VS. FRN Appeal No. SC/172/2017 was dissimilar from the case at hand and urged the Court to hold that the two cases are dissimilar and that this Court should set aside the ruling of the trial Court overruling the no-case submission.

The Cross Appellant’s Counsel also argued that the Cross-Appellant at all times objected to the admissibility of the documents but was overruled in most instances. That since the Cross-Appellant was asked to enter his defence, he had no choice but to refer to the document to show that they do not establish his guilt. The Cross-Appellant’s counsel then argued that Exhibits PW1-A, PW1-A1, PW1-A2 and PW1-8 in addition to oral and other documentary evidence were considered by the

trial judge in reaching his decision contrary to the assertion of the Cross-Respondent.

Additionally, to the issue of documents being tendered other than by their maker the Cross Appellant’s counsel argued that the conditions precedent under Section 37 of the Evidence Act must be fulfilled. That apart from the exceptions contained in Section 39 of the Evidence Act, any documents tendered by a person who is not their maker is hearsay. The Cross Appellant’s Counsel urged this Court to expunge the documents and set aside the ruling of the trial Court. On this point, counsel cited the case of BUHARI VS. OBASANJO (2005) LPELR – 815 SC; AHMADU VS. STATE (2014) LPELR – 23974 CA; KASA VS. STATE (1994) LPELR – 1671 SC.

Finally, as it relates to the Cross-Respondent’s arguments under issue 2 which relate to Exhibit PW1-D and PW2-A1, the Cross Appellant’s counsel argued that the case of NARINDEX LIMITED VS. N. I. C. M. B. LIMITED (supra) is distinguishable from the case at hand and that in the instant case, no evidence was led at all in pursuance of Section 89(h) or 90 (1)(e) of the Evidence Act. The Cross

Appellant’s Counsel further argued that the issue presented in the instant case is that of non-compliance not partial compliance. Counsel urged the Court to expunge Exhibit PW1-D and PW2-A1.

In conclusion, the Cross Appellant’s counsel urged the Court to allow the cross-appeal and set aside the ruling of the trial Court that a prima facie case had been established against the Cross-Appellant.

JUDGMENT
Having summarized the arguments of Counsel, I wish to adopt the issues for determination raised by the Cross Appellant which I will address hereunder as follows:
ISSUE ONE
Under this issue, the Cross-Appellant argued that Exhibits PW1-A, PW1-A1, PW1-A2 and PW1-B which were tendered by Mr. Reuben Omosigho who is a Police Officer attached to the EFCC, are documentary hearsay by virtue of Section 37 and 38 of the Evidence Act as they were not tendered by their makers.

I have reviewed both the contents of Exhibits PW1-A, PW1-A1, PW1-A2, and the ruling of the trial judge. I will begin by again stating these documents are:
(i) PW1-A- a letter written by Ebira Peace and Human Rights Watch to the National Security Adviser

and it is a petition alleging various acts of fraud amounting to about 5 Billion Naira against the Cross-Appellant signed by one Abdulrahman Sanni.
(ii) PW1-A1- a letter from the office of the National Security Adviser forwarding the petition to the Chairman of the EFCC signed by one M. Sanni.
(iii) PW1-A2- a synopsis of the petition.

The learned trial judge in his ruling on the Cross-Appellant’s objection to the Exhibits above held that:
“The document sought to be tendered is a certified true copy. In my opinion, the document sought to be tendered is relevant to establish the averments of PW1 in the course of his testimony. I therefore overrule the objection of the learned counsel on this ground.”

The law has been laid down by case law to the effect that the evidence of an investigating police officer is not hearsay. The Superior Courts have held this because in the course of investigation, the police officer is bound to make some findings which he will tender as exhibits obtained during his investigation.
It is also settled law that evidence is hearsay and inadmissible when it is proposed to establish the truth

of what the statement contains but it is not hearsay and is admissible when it is proposed to establish by evidence not the truth of the statement but the fact that it was said or made. See KALA VS. POTISKUM (1998) 3 NWLR (PT. 540) 1 SC; SUBRAMANIAM VS. PUBLIC PROSECUTOR (1956) 1 WLR 965.
The above position of the law was eloquently stated in OBOT VS. STATE (2014) LPELR – 23130 (CA) where it was held that:
“… An Investigating Police Officer obtains statements from accused persons and witnesses alike. He therefore testifies in Court giving a synopsis of what he did during investigation. He tenders the statement of both the accused and in some cases that of the witnesses. He also tenders some documents and exhibits obtained during investigation. The Investigating Police Officer therefore gives direct evidence as to what he has done during investigation of the crime. The evidence of the Investigating Police Officer is not by any standard hearsay. He gives an account of what he has done in the process of his investigation.”
The decision above has been upheld in the case of OLAOYE VS. STATE (2018) LPELR – 43601 (SC) and KAMILA VS. STATE (2018) LPELR – 43603 (SC).

I am therefore of the opinion backed by the cases cited above, that the trial Court was right to have admitted the documents tendered by PW1 who was the investigating officer of the case.

In any case, the admissibility of the documents should relate to their relevance in the case and ultimately it would be the weight to be attached to them that should matter. In GABRIEL DAUDU VS. FRN (2018) NWLR (PT. 1626) 169, it was held as to the admissibility of documents recovered in the course of investigation that: “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.”

Counsel for the Cross-Appellant had argued that Exhibit PW1-B was written on the 4th of June, 2010 while the charge was filed on the 31st of March, 2010 which shows that the letter was written long after the trial had commenced contrary to Section 83(3) of the Evidence Act.

The Cross-Appellant’s Counsel then argued that the Exhibit PW1-B was written by a person interested at a time when the proceedings were pending and is legally inadmissible. The law is that where the interest of a person is purely official or as a servant without direct interest of a personal nature, the documents should be admissible. This means where an official is just discharging his duty and does not have any personal opinion that document will be admissible. In NIGERIA SOCIAL INSURANCE TRUST FUND MANAGEMENT BOARD VS. KLIFCO NIGERIA LTD (2010) LPELR – 2006 (SC), the Apex Court held that:
“As regards the phrase “a person interested” I agree with the Respondent that the phrase has been examined in the case of EVAN v. NOBLE (1949) 1 KB 222 at 225 where a person not interested in the outcome of an action has been described

as, “a person who has no temptation to depart from the truth on one side or the other, a person not swayed by personal interest but completely detached, judicial, impartial, independent.” In other words, it contemplates that the person must be detached, independent and non-partisan and really not interested which way in the context the case goes. Normally, a person who is performing an act in his official capacity cannot be a person interested under Section 91(3). I think the phrase “a person interested” ever moreso has been quite definitively put in the case of HOLTON v. HOLTON (1946) 2 AER 534 at 535 to mean “a person who has a pecuniary or other material interest in the result of the proceeding – a person whose interest is affected by the result of the proceedings, and, therefore, would have a temptation to pervert the truth to serve his personal or private ends. It does not mean an interest in the sense of intellectual observation or an interest purely due to sympathy. It means an interest in the legal sense, which imports something to be gained or lost.”

In this case, it was an FIRS officer performing his official duty and writing a letter in

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reply to an inquiry by the investigators of the crime. The letter in question provided thus:
“RE: INVESTIGATION ACTIVITIES YAGBA-WEST, YAGBA-EAST, OKENE, ADAVI, KABBA BUNU AND OGORI-MANGONGO LOCAL GOVT COUNCILS
Find below the information you requested from our Lokoja Tax Office in respect of the above Local Government. Your letter dated 19 May, 2010 refers.
Local Govt Council VAT Liability Payment (2008- date) Outstanding
Okene LG 20,018,165.58 11,212,166.67 8,805,998.91
Kabba Bunu LG 5,293,292.16 2,600,000.00 2,693,292.16
Ogori Magango LG 7,099,963.77 280,000.00 6,819,963.77
Yagba-East LG 11,619,830.35 3,700,000.00 7,919,830.35
Yagba-West LG 7,251,062.02 – 7,251,062.02
Adavi LG 6,450,808.01 – 6,450,808.01
Thank you,
Umar B. A.
Assistant Director (Administration)
Tax Operation Group.”

From the letter above, it cannot be said that the FIRS officer is a person of interest as envisioned by Section 83(3) of the Evidence Act. I am therefore of the firm view that Exhibit PW1-B was not made by a person interested and therefore not caught by the provisions of

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Section 83(3) of the Evidence Act and I so hold. The argument of counsel that same was made after proceeding had commenced is of no moment.

Finally, the Cross-Appellant argued that from evidence of PW3 it can be seen that Exhibit PW1-B was an extract of a report which was not tendered before the learned trial judge and neither PW1 or PW3 took part in said verification as such Exhibit PW1-B is inadmissible by virtue of Section 37 and 38 of the Evidence Act.

I will like to state categorically that much like PW1-A, PW1-A1 and PW1-A2, Exhibit PW1-B was tendered by PW1 who was the investigating police officer. Coming to this conclusion, I rely on my reasoning in the earlier part of this judgment as it relates to PW1-A, PW1-A1 and PW1-A2 to the effect that PW1 who was the investigating officer tendered Exhibit PW1-B such I find that it is admissible.

It must be stated that regarding documents recovered in the progress of investigation, their admissibility is determined by how relevant they are and it is the weight to be attached to the documents that becomes the issue. Exhibit PW1-B is certainly relevant as such its admission by the learned trial judge was right.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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I hereby resolve this issue as it relates to the admissibility of Exhibits PW1-A, PW1-A1, PW1-A2, PW1-B in favour of the Cross-Respondent against the Cross-Appellant.

ISSUE TWO
This issue relates to Exhibits PW1-D and PW2-A1; statements of accounts which the Cross-Appellant claimed were not admissible as the conditions in Section 89(h) and 90(1)(e) of the Evidence Act had not been satisfied. Sections 89(h) and 90(1)(e) of the Evidence Act provides as follows:
“89. Secondary evidence may be given of the existence, condition or contents of a document when:
h) the document is an entry in a banker’s book.
90. (1) The Secondary Evidence admissible in respect of the original documents referred to in 89 is as follows:
e) in paragraph (h), the copies cannot he received as evidence unless it is first be proved that –
i. the book in which the entries copied were made was at the time of making one of the ordinary books of the bank,
ii. the entry was made in the usual and ordinary course of business,
iii. the book is in the control and custody of the bank, which proof may be given orally or by affidavit by

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an officer of the bank, and
iv. the copy has been examined with the original entry and is correct, which proof must be given by some person who has examined the copy with the original entry, and may be given orally or by affidavit.”
What can be gathered from the Sections above as rightly stated by the Cross-Appellant is that for copies of a bankers book to be admissible in evidence, the conditions stipulated in Section 90(1)(e) must be fulfilled. These conditions reproduced are:
i. the book in which the entries copied were made was at the time of making one of the ordinary books of the bank;
ii. the entry was made in the usual and ordinary course of business;
iii. the book is in the control and custody of the bank,
iv. the copy has been examined with the original entry and is correct.

The Cross-Respondent on their part, argued that Section 89(e) of the Evidence Act permits secondary evidence to be given of the existence, condition or contents of a document when the original is a public document within the meaning of Section 102. That Section 102 recognizes public documents as documents forming the official acts or

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record of official acts of official bodies of which by virtue of definition of official bodies necessarily includes banks.

Additionally, they argued that statements of accounts are public records being official acts of official bodies and qualify as “public records kept in Nigeria of private companies.”

I have examined the two exhibits which were tendered by PW1 and PW2, what I find is that I agree with the arguments of the Cross-Respondent that the documents are public documents which are admissible by virtue of Section 89(e) of the Evidence Act. From my understanding, the EFCC during the course of investigation wrote a letter to both banks requesting for the statement of accounts of the Cross-Appellant. The banks in turn responded to the EFCC with these bank statements. The documents that sought to be tendered were certified by the bank and EFCC and were in possession of the EFCC. Section 102 of the Evidence Act provides that:
“102. The following documents are public documents –
a) documents forming the official acts or records of the official acts of –
(i) the sovereign authority,

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(ii) official bodies and Tribunals, or
(iii) public, officers, legislative, judicial and executive, whether of Nigeria or elsewhere: and
b) public records kept in Nigeria of private documents.”
While Section 89(e) of the Evidence Act states that:
“89. Secondary evidence may be given of the existence, condition or contents of a document when –
e) the original is a public document within the meaning of Section 102.”
From the provisions of the Section above, it can be interpreted that the letters from EFCC definitely constitutes “documents forming the official acts or records” while the bank’s reply with the Cross-Appellant’s statement of account comes under Section 102(b) of the Evidence Act since being received by an official body, it will be kept as a public record. This automatically means the documents are admissible as secondary documents by virtue of Section 89(e). See KWARA STATE WATER CORP VS. AIC (NIG) LTD (2009) ALL FWLR (PT. 485) 1738.
In TABIK INVESTMENT LIMITED VS. G. T. B. PLC (2011) LPELR – 3131 (SC) the Supreme Court held that:
“Section 318 (h) of the Constitution

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states that: “318 Public service of the Federation means the service of the Federation in any capacity in respect of the Government of the Federation, and includes service as – (h) members or officers of the armed forces of the Federation or the Nigeria police Force or other government security agencies established by law.” Section 18 (1) of the Interpretation Act Cap. 192 LFN 1990 defines a public officer thus: “Public officer means a member of the service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria or the Public Service of a State.” By virtue of Section 318 (h) of the Constitution and Section 18 (1) of the Interpretation Act Cap. 192 LFN 1990 a Police Officer is a public officer, and so all documents from the custody of the police, especially documents to be used in Court are public documents.”
In the TABIK case above, it was a private petition sent to the police, which the Courts found formed part of the record of the police and consequently a public document. On the strength of this authority, I firmly believe that the statement of accounts became “public” because they were in the

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custody of a public official officer who sought to tender it. It therefore means that the documents are admissible as secondary evidence by virtue of Section 89(e) of the Evidence Act.

It is noteworthy to state that whether a document is private or public it should be admissible when necessary, if it is relevant, and would aid the course of justice and not be refused on mere technical grounds. What makes a document admissible is its relevancy in the case.
I resolve this issue in favour of the Cross-Respondent against the Cross-Appellant.

ISSUE THREE
This issue deals with whether the trial judge was right to have admitted the Exhibits PW1-D, PW4-A, PW4-A1, PW4-A2 and PW1-A3 and PW4-A4 being photocopies of Certified True Copies of Public documents and had no evidence that proper certification fees had been paid contrary to Section 104.

Under this issue, though the Cross-Appellant focused on appropriate certification fees not being paid in order to certify the public documents that were tendered, the Cross-Respondent on the other hand stated that the documents were computer generated documents which fall under the conditions of

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Section 84 of the Evidence Act. They relied on the cases of DICKSON VS. SYLVA & ORS (2016) LPELR – 41257 and GABRIEL DAUDU VS. FRN (2018) NWLR (PT. 1626) 169 to state that the documents were certified.

Before I begin to give my reasoning on this issue, it is imperative that I reproduce the exhibits in question. The exhibits are:
i. PW1-D – Letter dated September, 2011
ii. PW4-A – Document titled “Application for Loan” dated 20/01/09
iii. PW4-A1 – Document titled “offer of cash collaterized facility” dated 19th January, 2009.
iv. PW4-A2 – Document titled “cash collaterized Facility/Disbursement Form
v. PW1-A3 – Memorandum of Charge” dated 19/01/2009
vi. PW4-A4 – Document titled “Certificate of Deposit”

Section 104 of the Evidence Act 2011 provides as follows:
“104.
1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the

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foot of such copy that it is a true copy of such document or part of it as the case may be.
2) The certificate mentioned in Subsection (1) of this section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
3) An officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.”
From the above, Section 104 requires that for proper certification, the following conditions must be satisfied:
i. Payment of legal fees in respect of certification of the document;
ii. A certificate written at the foot of the copy that it is a true copy of such document or part thereof
iii. The date when the certification was done
iv. The name and official title of the certifying officer
v. Where use of seal is authorized, the affixing of a seal on the document.

The law as to the certification of a public document has indeed been

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settled by TABIK INVESTMENT LIMITED VS. G.T.B. PLC (2011) LPELR – 3131 (SC) to the effect that the word “shall” in Section 104 of the Evidence Act implies that all the elements listed above must be complied with. In essence, the requirements are mandatory.
The Supreme Court in TABIK INVESTMENT LIMITED VS. G. T. B. PLC (supra) held verbatim that:
“It is clear from the above provision that the word “shall” is used at strategic positions in the section of the enactment to demonstrate the mandatory nature of the provision. It is not in doubt that a person seeking to take advantage of the provision and the officer entrusted with the responsibility of ensuring that the person takes advantage of same have to comply specifically with the above provisions to achieve the required legal effect. Any failure to comply with any aspect of the requirements either by the party seeking the advantage or the officer in charge of conferring same renders the exercise ineffective. The provision itself is very clear and unambiguous and does not need any interpretation.”

In UDO VS. STATE (2016) LPELR – 40721 (SC), the Supreme Court

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affirming the decision in the TABIK’s case above and held that:
“The issue that arose in that case was the admissibility of documents purportedly certified but not certified in full compliance with the provisions of Section 111 (1) of the Evidence Act, Cap. 112 Laws of the Federation of Nigeria (LFN) 1990. The documents tendered before the trial Court from the custody of the Police were purported to be certified true copies of the originals. However, no legal fees were paid for the certification. The contention of the plaintiffs/appellants was that since the witness who tendered the documents was a Police officer, he need not pay for the certification of the documents. This Court held that in the certification of documents, all the conditions contained in Section 111 of the Evidence Act are mandatory and must be complied with, to with, that is: i. the necessary fees must be paid for certification; ii. there must be an endorsement or certificate indicating that it is a true copy of the document in question; iii. the endorsement or certificate must be dated and signed by the officer responsible for the certification with his name and official title.

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The Court further held that the Lower Court rightly held that failure to pay the legal fees amounted to non-compliance with the provisions of the Evidence Act.”
From the precedents above it is therefore settled that non-payment of certification fees makes the certification incomplete and the document inadmissible unless the party who seeks to tender them goes and pays the fees to complete the certification. The law according to the TABIK’s case is that the Section 104 has not made any exemption from the payment of legal fees by any person who requires to secure a certified true copy of any public document in custody of a public officer.
I have examined the exhibits and have found that they are public documents as such they must be certified in accordance to Section 104.
It should be restated here that the PW1 is an EFCC officer who is in custody of these documents. I would have loved to toe the line of BRILA ENERGY LTD VS. FRN (2018) LPELR – 43926 (CA) where it was held that:
“A close scrutiny of the Exhibit P41 series discloses that they bear all the requirements for certification, save the evidence of payment of fees

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for certification. However, the evidence before the trial Court is that the documents emanated from the EFCC itself, having received them as a direct response to their request for assistance under the Mutual Legal Assistance agreement between the Governments of Nigeria and Greece. They were also tendered through an operative of the EFCC, PW19. From the uncontroverted evidence before the trial Court, the request for Mutual Legal Assistance from the Greek Government was initiated by the EFCC through the office of the Hon. Attorney General and Minister for Justice of the Federal Republic of Nigeria…Thus, the response to this request for assistance by the Government of the Republic of Greece was sent from the Hellenic (Greek) Ministry of Justice vide their covering letter (at pages 56-57 of Exhibit P41) to the Embassy of the Federal Republic of Nigeria in Greece (covering letter at page 1 of Exhibit P41), directly to the recipient, the EFCC. Therefore, the EFCC, at all times, had custody of the documents which formed part of their investigation, up to the time they were tendered in Court and admitted as Exhibit P41. In the light of these peculiar facts, the

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EFCC could not be expected to pay fees for the certification of documents which were at all times in their custody and which were produced from their custody, in proof of a case which they investigated. These circumstances clearly do not fall within the purview of Section 104 of the Act in that it is the same EFCC, as the public officer in custody of the documents, who actually produced and tendered the documents in Court. This is therefore a scenario/situation which is not accommodated within the provision Section 104(1) of the Act with the regard to the payment of certification fees, as none are prescribed.”
The truth of the matter is that all the documents which have been mentioned in this issue were in the custody of the EFCC. The question then is, will the EFCC pay fees to certify documents that are already in their custody? I think not. This is not a case of another government agency or body asking for certification of these documents. The documents are already in custody of the EFCC. I therefore find that all the Exhibits were rightly admitted.

This issue is resolved in favour of the Cross-Respondent against the Cross-Appellant.

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ISSUE FOUR
Under this issue, the Cross-Appellant argued that the trial judge’s holding that the prosecution had established all the essential ingredients of the offences charged in Counts 2, 3, 4, 5, 6, 7, and 9 at the close of the prosecution’s case was wrong.

The trial Court’s judgment at pages 628 – 632 in answering the Cross-Appellant’s no-case submission held:
“In deciding whether there has been no evidence to prove an essential element in the alleged offences, it is important to note that the Court at this stage does not review evidence. It would be premature to do so since the Court is not proceeding to convict the accused person. The Court is guided by the evidence that is apparent or rather ex facie. In doing that, I have taken notice of the fact that during trial, the Prosecution called five witnesses, that is PW1, 2, 3, 4 and 5. I have already looked at their testimonies in the proceeding pages of this ruling. These Witnesses tendered documents in the course of their respective testimonies…The learned counsel for the accused person has submitted that concerning

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Section 14 of the Money Laundering (Prohibition) Act 2004, the Prosecution has to establish the following ingredients:
a. There is a moveable property or resources illegal acquired;
b. The Accused Person converted the property or resource i.e.
1. By misappropriating it to his own use; and
2. Doing do dishonestly
c. The Accused did so, with the aim of concealing the illicit origin of the property by giving the impression that it was lawfully acquired.
I do not concede that the learned Counsel for the Accused person is absolutely correct but if I have to go by learned Counsel’s submission, my opinion after having studied the documentary evidence I have enumerated is that they make a prima facie case with respect to the allegations of conversion against the accused person” …Finally, I now return to the question raised by the Defence for answer by the Court. My answer is in the affirmative. I hold that the Prosecution has made out a prima facie case of conversation in the respective of the charges in counts 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 against the Accused Person. The circumstances therefore warrant the Accused person to

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enter a Defence. This answer in my opinion has also taken care of the question raised by the Prosecution for determination. On the whole I find that the no-case submission of the Accused person lacks merit and I hereby over-rule same.”

Specifically, the Cross-Appellant’s counsel argued that as it relates to counts 2, 3, 4, 7 and 9 which all relate to Section 14 of the Money Laundering (Prohibition) Act all the prosecution did was merely to show that lodgments were made into the account of the Cross-Appellant and not that he had converted resources or property. The Cross-Appellant relying on UDEOGU VS. FRN (2016) ALL FWLR (PT. 837) 588 and KALU VS. FRN (2016) ALL FWLR (PT. 842) 1694 submitted that to prove Section 14 of the Money Laundering (Prohibition) Act, the prosecution must prove that:
“(i) the accused converted or transferred resources or property;
(ii) the resource or property must have been derived directly or indirectly from drugs related offences or any other crimes or illegal acts;
(iii) the conversion or transfer of the resources must be with aim of:
a) concealing or disguising the illicit origin of the

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resources or Property; or
b) aiding any person involved in any of the acts of drug related offences or any other crime or illegal act so as to evade the illegal consequences of his action.”

It is now imperative to reproduce these counts below:
COUNT TWO
That you, Yahaya Abubakar ‘M’ while being the Chairman of Okene Local Government of Kogi state on the 23rd September, 2008 within the Jurisdiction of the Federal High Court, converted the sum of N2,500,000.00 (Two Million Five Hundred Thousand Naira Only), being an illegal act of abuse of office, with the aim of concealing its illicit origin and you thereby committed an offence contrary to Section 14 of the Money Laundering (Prohibition Act) 2004 and also punishable under Section 14 of the same Act.
COUNT THREE
That you, Yahaya Abubakar ‘M’, while being the Chairman of Okene Local Government of Kogi State, on 23rd October, 2008 within the Jurisdiction of the Federal High Court, converted the sum of N5,05.000.00 (Five Million and Fifty Naira Only), being an illegal act of abuse of office, with the aim of concealing its illicit origin and you

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thereby committed an offence contrary to Section 14 (1) (a) of the Money Laundering (Prohibition Act) 2004 and also punishable under Section 14 (1) of the same Act.
COUNT FOUR
That you Yahaya Abubakar ‘M’, while being the Chairman of Okene Local Government of Kogi State, on 24th September, 2008 within the Jurisdiction of the Federal High Court, converted the sum of N1,000,000.00 (One Million Naira Only), being an illegal act of abuse of office, with the aim of concealing its illicit origin and you thereby committed an offence contrary to Section 14 (1) (a) of the Money Laundering (Prohibition Act) 2004 and also punishable under Section 14 (1) of the same Act.
COUNT SEVEN
That you Yahaya Abubakar ‘M’ while being the Chairman of Okene Local Government of Kogi State on 15th January, 2009 within the Jurisdiction of the Federal High Court, converted the sum of N10,208.000.00 (Ten Million, Two Hundred and Eight Thousand Naira Only), being an illegal act of abuse of office, with the aim of concealing its illicit origin and you thereby committed an offence Contrary to

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Section 14 (1) (a) of the Money Laundering (Prohibition Act) 2004 and also punishable under Section 14 (1) of the same Act.
COUNT NINE
That you Yahaya Abubakar ‘M’ while being the Chairman of Okene Local Government Area of Kogi State on 9th November, 2009 within the Jurisdiction of the Federal High Court, converted the sum of N3,000.000.00 (Three Million Naira Only), being an illegal act of abuse of office, with the aim of concealing its illicit origin and you thereby committed an offence contrary to Section 14 of the Money Laundering (Prohibition Act) 2004 and also punishable under Section 14 of the same Act.

The Respondent entered a plea of not guilty to each of the Nine (9) counts in the 4th Amended Charge.
As it relates to count 5 and 6 which read:
COUNT FIVE
“That you, Yahaya Abubakar ‘M’, while being the Chairman of Okene Local Government of Kogi State on between 2008 and 4th June, 2010 within the Jurisdiction of the Federal High Court with intent to defraud obtained from other persons by false pretences, the sum of N8,805,000.91 (Eight Million Eight Hundred and Five Thousand and Ninety One Kobo) and thereby committed an offence

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contrary to Section 1 (1) (a) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006 and also punishable under Section 1 (3) of the same Act.
COUNT SIX
That you Yahaya Abubakar ‘M’ while being the Chairman of Okene Local Government of Kogi State on between 2008 and 4th June, 2010 within the Jurisdiction of the Federal High Court, under the disguise of deducting value added tax (VAT) fraudulently converted the sum of N8,805,000.91 (Eight Million Eight Hundred and Five Thousand Nine Hundred and Ninety One Kobo) and thereby committed an offence Contrary to Section 40 of the Federal Inland Revenue Act 2007 and also punishable under Section 40 of the same Act.

The Cross-Appellant’s Counsel also argued that the ingredients under Section 1(1)(a) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006 were not proved to sustain count 5. These ingredients are:
1. That there was pretense
2. That the pretense emanated from the accused person
3. That the pretense was false
4. That the accused person knew of the falsity of the pretense or did not believe in truth.
5. That there was

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intent to defraud
6. That the property or thing is capable of being stolen
7. That the accused person induced the owner to transfer his whole interest in the property.

Similarly, Counsel for the Cross-Appellant argued that the ingredients of Section 40 of the Federal Inland Revenue Act 2007 was not proved. The ingredient are as follows:
i. That the Accused person was obliged to deduct tax either under the Act or any other law listed in the First Schedule;
ii. That he fails to deduct the said tax; or
iii. That he had deducted the tax but failed to remit the tax to the Service within 30 days from the date the amount was deducted.

Now, the law as it relates to no case submission is to the effect that where the prosecution has not established a prima facie case against the accused person, the accused may enter a no case submission at the close of the prosecution’s case. In the case of DELE FAGORIOLA VS. FEDERAL REPUBLIC OF NIGERIA (2013) LPELR – 20896 (SC), the Supreme Court defined no case submission when it held:
“What then does the phrase “no case submission” mean? This means that there is no evidence on

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which the Court would convict even if the Court believed the evidence adduced by the prosecution. See; R. v. Coker & amp; Ohuka Ors. v. The State (1988) 2 NWLR (pt 86) 36; (1988) 7 SC (pt. 11) 25.”

While the circumstances in which a no case submission is made and up held was given in AMINU MOHAMMED VS. THE STATE (2007) LPELR – 1899 (SC) when the Supreme Court held that:
“A submission that there is no case to answer may properly be made and upheld: (a) when there has been no ‘evidence to prove an essential element in the alleged offence; (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination, or is manifestly unreliable, that no reasonable Tribunal could safely convict on it. Apart from these two situations, a Tribunal should not in general be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating Tribunal (if compelled to do so) I would at that stage convict

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or acquit but on whether the evidence is such that a reasonable Tribunal might convict. If a reasonable Tribunal might convict on the evidence so laid before it, there is a case to answer.”

From the case above, what can be deciphered is that the conditions which must be present to sustain a no case submission are:
i. The prosecution has failed to prove an essential element of the alleged offence; or
ii. The evidence adduced by the prosecution has been so discredited as a result of cross-examination; or
iii. The evidence adduced by the prosecution is so manifestly unreliable.

It must therefore be noted that the duty of the Court where a no case submission has been made is not whether the evidence produced by the prosecution against the accused is sufficient to justify conviction but whether the prosecution has made out a prima facie case requiring, at least, some explanation from the accused person as regard his conduct or otherwise. In essence, the Court is not called upon at this stage to express any opinion on the evidence before it. The Court is only called upon to take note and rule accordingly whether there is before the

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Court no legally admissible evidence linking the accused person with the commission of the offence charged. But if there is legally admissible evidence, however slight, the matter should proceed as there is something to answer to by the accused.
This therefore means that the question to answer when it comes to no case submission is: Whether the prosecution has provided a prima facie case against the accused?

A prima facie case has been defined in the case of ILIYASU SUBERU VS. THE STATE (2010) LPELR – 3120 (SC), where the Supreme Court held that:
“The term, so far as we can find has not been defined either in English or in Nigerian Courts. “His Lordship then relied on an Indian case of Sher Sinsh v. Jitendranathsen (1931) 1 LR 59 Case 275 where the Indian Court held, inter alia: “What is meant by a prima facie (case)? It only means that there is ground for proceeding… But a prima facie is not the same as proof which comes later when the Court has to find whether the accused is guilty or not guilty” (per Grose, J) and “the evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient

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to prove the case against the accused.” In Ikomi v. State (1986) 5 SC 226, the Supreme Court had this to say: “The question is in all these circumstances, can it be justly said that there is nothing linking the appellants with the offence…The term, prima facie case, answers the questions on the face of the proof of evidence: is there a ground for proceeding? Does the proof of evidence disclose an offence or offences and if so, is the accused linked with the offence as to require him to explain his involvement therein?”
A prima facie case is therefore the establishment of a legally required reputable presumption and not the same thing as the proof which comes later when the Court has to find whether the accused is guilty or not guilty.

In this case, the Defendant based his no case submission on the premise that no ingredients of the offences under any of the Sections – Section 14 of the Money Laundering Prohibition Act, Section 1(1)(a) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006 and that of Section 40 of the Federal Inland Revenue Act 2007 were proved as such no prima facie case was established against the

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Cross-Appellant. In answering this issue, I will state again that it is not the trial judge’s job at that stage to weigh and evaluate evidence or decide who is telling the truth or who is lying and he is not to conclude that what the prosecution has adduced is unreliable.
I have like the trial judge, looked at the evidence given by the 5 prosecution witnesses together with the evidence tendered. In respect of Section 14 of the of the Money Laundering (Prohibition) Act, I find as the trial judge did, that the prosecution made a prima facie case for conversion. As to counts 5 and 6 the prosecution also made a case of the Cross-Appellant having the intent to defraud the FIRS while he was the head of the Local Government as he was in charge of its affairs. This is because the Court at the stage of no case submission is only called upon to take note and rule accordingly that there is before the Court either no legally admissible evidence linking the accused person with the commission of the offence charged or that there is legally admissible evidence. If there is legally admissible evidence however slight, the matter should proceed as there is something

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to look at. Moreover, the grant of a no-case submission is within the discretion of the judge, it is not a constitutional right of the defendant.

All things considered, answering this issue is even an academic exercise. Assuming this Court upholds the no-case submission to what effect will it be to the Cross-Appellant? It will be an acquittal. Now, even as I have agreed with the trial judge’s decision to overrule the no case submission the effect is that the Cross-Appellant’s acquittal at the end of the case still stands. Either way, the Cross-Appellant’s acquittal stands.
I resolve this issue in favour of the Cross-Respondent against the Cross-Appellant.

ISSUE FIVE
This issue relates to count 1 and 8 contained in the 4th Amended Charge being bad as argued by the Cross Appellant that they were repetitive and a duplication of each other. The said counts 1 and 8 shall be reproduced hereunder:
COUNT ONE
That you Yahaya Abubakar ‘M’, while being the Chairman of Okene Local Government of Kogi State sometimes between July 2008 and September 2011 within the Jurisdiction of the Federal High Court,

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committed an offence to wit: converted the sum of N17,440,793.61 (Seventeen Million Four Hundred and Forty Thousand, Seven Hundred and Ninety Three Naira, Sixty One Kobo) only, property of the Okene Local Government Area of Kogi State, which was in whole or in part, directly or indirectly, represented proceeds of an illegal act, Contrary to Section 14 of the Money Laundering (Prohibition Act) 2004 and also punishable under Section 14 of the same Act.
COUNT EIGHT
That you Yahaya Abubakar ‘M’ while being the Chairman of Okene Local Government of Kogi State on 23rd March, 2009 within the Jurisdiction of the Federal High Court, converted the sum of N15,000.000.00 (Fifteen Million Naira Only) being an illegal act of abuse of office, with the aim of concealing its illicit origin and you thereby committed an offence contrary to Section 14 (1) of the Money Laundering (Prohibition Act) 2004 and also punishable under Section 14 (1) of the same Act.

In considering whether count 1 is a repetition of count 8, I must look at the evidence adduced at the trial Court as it relates to these two issues.

In proving count 1, the prosecution

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relied on the evidence of PW1 who stated in page 570 – 571 of the Record of Appeal that:
“I stand by my evidence in respect of the loans, the accused person took from UBA. Part of the response we got from UBA revealed that the same personal of the accused was deficit of over 11m as at 19th March, 2009. In order to offset this deficit, there was fraudulent arrangement which involved the movement of funds, that is 15M being the Local Government Fund, was placed as fixed deposit in the same bank, which was to take effect from 16th March to 15th April, 2009; interval of one month before the date of maturity of the loan i.e 23 March, 2009. The fixed deposit was closed and the fund of N15M was credited to the personal account of the Accused person….”

Now in proving count 8, the prosecution relied on the evidence of PW4 in page 585 who stated that:
“…The Accused person is the immediate past chairman of Okene Local Government and one of my valued customers. Okene Local Government has two Accounts with the Bank…There is a loan facility that was accessed by the Accused person. The loan was for 10.8Million. The facility was

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secured with fixed-time deposit. It was a personal facility by the Accused person. A fixed deposit of the local government was used to secure the facility of 15Million. Upon the maturity of the loan, the fixed deposit of the Local Government was crashed into his personal account to clear the loan obliged….”

The trial judge on his part as it relates to count 8, held at page 909 of the Record of Appeal that:
“On count 8, the Prosecution says they adduced evidence by Exhibit DW6-B proving that on 23rd March, 2009 one IRO made a transfer deposit of N15,000,000 into the Defendants private account No. 100913777 with UBA Plc. Upon perusing the allegation in the count and the transaction that took place on 23rd March, 2009 in Exhibit DW6-B, it is obvious as rightly stated in the charge that the transaction as by fund Transfer Deposit (FTD). It was the evidence of PW4 that the Defendant applied for a personal loan which UBA Plc granted. A fixed deposit of N15,000,000 of the Local Government was used to guarantee the loan and the fixed deposit was thereafter collapsed into the personal account of the defendant. In other words, fixed deposit

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belonging to the Local Government was used in paying back the loan….”

I have reviewed these pieces of evidence above and in all sincerity I agree with the Cross-Appellant that counts 1 and 8 are one and the same as they both relate to the 15 million Naira cashed into the Cross-Respondent’s account to offset the loan taken by the Cross-Appellant. The law as it relates to the duplication of a count i.e. charging the accused of the same offence in more than one count is that it offends the law as such, count 8 is hereby struck out.
This issue is resolved in favour of the Cross-Appellant against the Cross-Respondent.

ISSUE SIX
This issue pertains to whether the learned trial judge was right to overrule the no-case submission made by the Cross-Appellant in respect of counts 1 and 8 of the 4th Amended charge when, on the legally admissible evidence before the learned trial judge, no prima facie case had been established against him on those counts.

This issue is much like issue four in that it challenges the no-case submission. I have already struck out count 8 in issue five above as such I shall be dealing with only

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count 1. Count 1 was couched thus:
COUNT ONE
That you Yahaya Abubakar ‘M’, while being the Chairman of Okene Local Government of Kogi state sometimes between July 2008 and September 2011 within the Jurisdiction of the Federal High Court, committed an offence to wit: converted the sum of N17,440,793.61 (Seventeen Million Four Hundred and Forty Thousand, Seven Hundred and Ninety Three Naira Sixty One Kobo) only, Property of the Okene Local Government Area of Kogi State, which was in whole or in part, directly or indirectly, represented proceeds of an illegal act, contrary to Section 14 of the Money Laundering (Prohibition Act) 2004 and also punishable under Section 14 of the same Act.

I have already mentioned in the earlier part of my judgment that the granting of a no-case submission falls under the discretionary power of the judge. In issue four, I have extensively discussed various elements as it relates to a no case submission. The question I must therefore answer is whether a prima facie case was made against the Cross-Appellant as it relates to count one. The testimonies and evidence which is applicable to this count are

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those of PW1, PW4 and PW5. PW1 on page 570 – 571 testified that:
“I stand by my evidence in respect of the loans, the accused person took from UBA. Part of the response we got from UBA revealed that the same personal of the accused was deficit of over 11m as at 19th March, 2009. In order to offset this deficit, there was fraudulent arrangement which involved the movement of funds, that is 15m being the Local Government Fund, was placed as fixed deposit in the same bank, which was to take effect from 16th March to 15th April, 2009; interval of one month before the date of maturity of the loan i.e., 23 March, 2009. The fixed deposit was closed and the fund of N15M was credited to the personal account of the Accused person. The deficit of 11m was cleared from Accused Person’s personal account. This was a fraudulent.”
PW4 on his part testified on page 585 that:
“My name is Lawal Abdurrahman. I am the Business Manager in UBA Plc, Okene Branch. I know the Accused Person and I know why I am in Court today. The Accused person is the immediate past chairman of Okene Local Government and one of my valued customers. Okene Local

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Government has two Accounts with the Bank…There is a loan facility that was accessed by the Accused person. The loan was for 10.8Million. The facility was secured with fixed-time deposit. It was a personal facility by the Accused person. A fixed deposit of the local government was used to secure the facility of 15Million. Upon the maturity of the loan, the fixed deposit of the Local Government was crashed into his personal account to clear the loan obliged. I have documents on these transactions….”

Looking at these testimonies and the exhibits tendered to prove same, on the surface, it can be said that the Cross-Appellant established a prima facie case. The Cross-Appellant indeed had a case to answer as it related to why the Local Government’s fund was used to clear his indebtedness to his personal loan. I leave this matter here and say no more. This is so because this issue has already been dealt with comprehensively whilst treating the substantive appeal.

I resolve this issue in favour of the Cross-Respondent against the Cross-Appellant.

This Cross-Appeal is partly upheld considering my findings above. I make no

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further orders. This Cross-Appeal succeeds in part.

The result is that the judgment of the learned trial judge in discharging and acquitting the Respondent herein is affirmed. I make no orders as to cost.

STEPHEN JONAH ADAH, J.C.A.: I read the draft copy of the judgment just delivered by my learned brother, MOHAMMED BABA IDRIS, J.C.A.

The appellant from the record before this Court had amended the charge against the respondent four times within the lifespan of the case. By the last amended charge which was the 4th amendment, the appellant filed a 9 count charge against the respondent. From the analysis of the evidence before the trial Court, it is so certain that the burden of proof beyond reasonable doubt placed on the appellant by law was not discharged in the instant case. Prosecution of an offender is only to be carried out on the basis of concrete evidence and not on assumptions and sentiments. There is truly a failure of the prosecution’s case at the trial Court. my learned brother has effectively gone over all the evidence placed before the trial Court before arriving at the conclusion therein.

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I therefore agree with the reasoning and the conclusion in the lead judgment affirming the judgment of the trial Court. I accordingly abide by the orders made in consequence therein.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading before now the lead judgment just delivered by my learned brother, MOHAMMED BABA IDRIS, J.C.A.

I agree with the reasoning and adopt the conclusion and orders reached therein.

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Appearances:

Mohammed Esq., with him, H. Gbalagade Esq., R. B. Yusuf Esq. and A. Ashura Esq. For Appellant(s)

M. Aliyu SAN, with him, K. C. Wisdom Esq., H. O. Usman Esq., N. N. Mohammed Esq. and Z. O. Obasa Esq. For Respondent(s)