HEPA GLOBAL ENERGY LIMITED v. FEDERAL REPUBLIC OF NIGERIA
(2017)LCN/10168(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of July, 2017
CA/L/147CA/2016
RATIO
TERRITORIAL JURISDICTION: WHAT WILL BE CONSIDERED IN DETERMINING THE TERRITORIAL JURISDICTION OF A COURT
The territorial jurisdiction of a criminal Court is normally determined by looking at the enabling law setting out the jurisdiction of the Court alongside the charge sheet vide Egunjobi v. F.R.N. (2013) 3 NWLR (Pt.1432) 534, Roda v. F.R.N. (2015) 10 NWLR (Pt.1468) 427 at 472, F.R.N. v. Nwosu (2016) 17 NWLR (Pt.1541) 226 at 304. Evidence in the case may also assist in determining the jurisdiction of the Court vide Roda v. F.R.N. (supra) at 472 thus –
“Though the criminal jurisdiction of a Court may be determined by reference to the charge alone, in appropriate cases, it may be necessary to lead some evidence before it becomes clear enough to make a decision on the point. Jurisdiction is never an issue the Court will find too late to resolve. After all it is either the Court has it or not. Thus even after the conclusion of trial if the Court on its own discovers that it has proceeded without the requisite competence, being a question of law, the Court can retrace it’s path.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
ALIBI: INSTANCES WHERE THE DEFENCE OF ALIBI WILL BE SAID TO BE LOGICALLY AND PHYSICALLY DEMOLISHED
The appellant’s vessel was arrested with the PMS product at the scene of crime destroying any defence of alibi thereby vide Njovens v. State (1973) NNLR 76 at 93 thus-
“If the prosecution adduced sufficient and accepted evidence to fix the person at the scene of crime at the material time, surely his alibi is thereby logically and physically demolished. The Supreme Court had had the occasion to consider this point in Hemyo Atam and Anor. v. The State S. C. 632/66 decided on the 11th January, 1967.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
STRICT LIABILITY: THE EFFECT OF STATUTE PROVISIONS DEALING WITH UNLAWFUL POSSESSION OF PRODUCT OR SUBSTANCE AND/OR WITHOUT LICENCE OR LAWFUL AUTHORITY ; WHETHER THE PERSON FOUND IN POSSESSION OF A CONTROLLED PRODUCT OR SUBSTANCE HAS THE BURDEN TO PROVE HE HAS THE APPROPRIATE LICENCE TO DEAL WITH THE CONTROLLED PRODUCT
Statutory provisions dealing with unlawful possession of product or substance and/or without licence or lawful authority wear the toga of strict liability. Once a person is found in possession of the controlled product or substance or the prosecution has proved possession the onus shifts to the person found in possession of the product or substance to justify his possession. See the proviso to Section 36(5) of the 1999 Constitution, Section 139(1) of the Evidence Act and Nigeria Air Force v. Kamaldeen (2007) All FWLR (Pt.361) 1676. If lawful authority is needed by the statute to justify the possession the person found with the controlled product or substance has the bounden duty to produce evidence of the lawful authority.
Where an appropriate licence is required the person found in possession of the controlled product or substance must produce the appropriate licence to justify his possession of the product or substance. See for example, Attorney-General Eastern Nigeria v. Osiala (1964) N.M.L.R.104 at107 at 107 to the effect that a person found in possession of a controlled product or substance has the burden to produce the appropriate licence or show the lawful authority for having the product or substance in his possession following the English case of R. v. Oliver (1943) 2 All E.R. 800. See also Slap v. A.-G., Federation (1968) N.S.C.C. 19. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
NON INTERFERENCE WITH THE FINDINGS OF THE FACT: CIRCUMSTANCES WHERE THE APPELLATE COURT WILL NOT INTERFERE WITH THE FINDINGS OF FACTS MADE BY THE TRIAL COURT
The findings of fact made by the Court below in its judgment in pages 1816 – 1827 of the record on the criminal liability of the appellant for the offences charged having been supported by the evidence in the record and premised on sound reasoning, cannot be faulted and are hereby affirmed vide Haruna v. A.-G., Federation (2012) 9 NWLR (Pt.1300) 419, Akinbisade v. State (2006) 17 NWLR (Pt.1007) 184 at 211, Nwosu v. Board of Customs and Excise (1988) 5 NWLR (Pt.93) 225. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
HEPA GLOBAL ENERGY LTD. Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the Federal High Court sitting in Lagos (the Court below), by which it convicted the appellant and ordered her to forfeit the vessel, MT Good Success, and some sums of money to the Federal Government for conspiracy to store and deal with petroleum product, storing and dealing with petroleum product and importing petroleum product contrary to Section 4 of the Petroleum Act and Section 1(17)(a) and (b) of the Miscellaneous Offences Act.
Shortly expressed the appellant was at all material times the owner of MT Good Success, a vessel. The appellant alleged she gave the vessel on charter to Benin Petroleum S.A. Cotonou, Benin Republic: The charterer caused the vessel to be laden with 1,459 metric tons of Premium Motor Spirits (PMS) offshore Lome. While on voyage, the MT Good Success developed engine fault and caused her to drift along with the high wind. The vessel eventually drifted within the shores of Nigeria. She was arrested with the crew and the 1,459 metric tons of PMS product in Nigeria territorial waters.
?The vessel and the
1
crew together with the appellant as the owner of the vessel, MT Good Success, were prosecuted at the Court below on a 5 count charge upon which they were found guilty and convicted and the appellant was ordered to forfeit to the respondent the sum of N66,069,305.71 domiciled in FCMB as proceeds of crime. The vessel and the cargo were also ordered to be forfeited to the Federal Government.
It was submitted by the appellant that her vessel, MT Good Success, was arrested outside the territorial waters of Nigeria and was on that basis not amendable to the municipal laws of Nigeria therefore her conviction for the offences under the Petroleum Act and the Miscellaneous Offences Act should not stand citing in support Sections 1(1), 2(1)(a) and (b) and 3(a) of the Territorial Waters Act 2004, Article 2 of the United Nations Convention on the Law of the Seas (UNCLOS) read with the case of A.G., Federation v. Abia State (2001) 11 NWLR (Pt.735) 714.
It was also submitted that the cargo in question was trans-loaded offshore Lome with the port of discharge at Cotonou and the vessel having loaded her cargo outside Nigeria but developed engine trouble offshore Lome
2
and drifted to Nigeria because of high current when the vessel was not Nigeria bound but only meant to pass through Nigeria territorial waters the Court below was wrong in convicting the appellant on the state of the said evidence especially as PW4 admitted that a vessel passing through Nigeria territorial waters with PMS product would not require to possess any licence issued by the Department of Petroleum Resources (DPR).
The appellant argued that the charge of conspiracy to deal with petroleum product without lawful authority or appropriate licence related only to counts 1 and 2 of the charge sheet and had no bearing on counts 3 and 4 of the charge sheet as presently constituted citing in support the cases of Posu v. State (2011) 2 NWLR (Pt.1234) 412 and State v. Salawu (2011) 8 NWLR (Pt.1279) at 613 to the effect that there must be a meeting of the minds of the conspirators to do an illegal act to ground the crime of conspiracy and that as the evidence did not disclose a common intention to commit a particular offence the Court below should not have convicted the appellant of conspiracy.
?
The appellant argued that by the preamble to the Petroleum
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Act an offence allegedly committed thereunder must have taken place on the territorial waters of Nigeria and the continental shelf and that not having established that the cargo was of the Nigerian origin the Court below should not have convicted the appellant of the offence(s) charged citing in supportOna v. Atanda (2000) 5 NWLR (Pt.656) 259, Ocean Fisheries Nig. Ltd. v. Board of Customs and Excise and Anor. (1986) Federal High Court Law Reports 95 at 104 read with Articles 1 , 18 and 19 of UNCLOS on the right of passage the vessel, MT Good Success, owned by the appellant with Nigerian flag as at the material time vide Ocean Fisheries Nig. Ltd. v. Board of Customs and Excise (supra) at 105 and the admission of PW8 in pages 1025 – 1026 of the record of appeal (the record) as well as Exhibit 5, the Nigerian Ports Authority letter dated 18-07-14 addressed to the EFCC.
?
It was also argued that from the evidence, it was clear that while in one breath PW9 admitted that the vessel did not enter Nigerian port during the period in question, the witness said in another breath that the vessel had entered within Nigeria territorial waters which amounted to blowing
4
hot and cold at the same time and should not be countenanced, consequently, there was no evidence to support the finding of the Court below that the appellant imported, stored and dealt with petroleum product in Nigeria and that the said finding should be set aside, especially as the Court below made mutually exclusive and perverse findings that the cargo of PMS product was sourced illegally from Nigeria and at the same time that it was imported into Nigeria.
The appellant argued that having regard to lack of evidence that the cargo of PMS product was illegally sourced and/or dealt with in Nigeria and that the appellant’s vessel was only exercising right of passage when she had engine problem and was drifted by high wind towards Nigeria territorial waters the order of forfeiture of the cargo and the vessel was erroneously made by the Court below and should be set aside as the vessel was registered for legitimate business and had qualified crew on board and had been trading on the same route loading PMS product via STS offshore Lome waters and discharging the same at Cotonou as far back as 2013 vide Lloyds Intelligence Report and that the same report did
5
not extend to 2014 and 2015 whereas the operations in issue took place in early 2015 showing the vessel was not engaged in illegal oil trade as to suffer her forfeiture by the order of the court below.
The appellant argued that the sum of N66,069,305.71 and US$975,694.50 ordered to be forfeited by the appellant from the FCMB accounts of the appellant were not proved by the evidence to be proceeds of crime or illegal trade, therefore the order is perverse and should be set aside.
?
The appellant argued that there was materially contradictory evidence whether the vessel was arrested in Nigeria territorial waters as stated by PW5 and PW10 and Lloyds Intelligence Report while the evidence from the Navy located the vessel far into the sea outside the territorial waters of Nigeria which struck at the root of the charge sheet and that the issue whether or not Benin Petrol S.A. was charterer of the vessel was settled by Exhibit P4, the letter dated 06-02-2015 issued by Embassy of the Republic of Benin and addressed to the Chief of Operations of EFCC and also confirmed by PW10 in page 1109 of the record and that in the absence of compelling, accurate, reliable
6
and convincing circumstantial evidence the Court below should not have convicted the appellant, more so the evidence of PW10 that the corporate office of SGS in Geneva had confirmed that it had nothing to do with the transaction between MT Good Success and MT Alma 2 was hearsay and that the said defence of alibi on the claim by the appellant that SGS Togo or Benin Republic was not investigated should have been construed against the respondent vide R. v. Taylor and Ors. (1930) 21 CAR 20 at 21, Obukor v. State (1984) 8 SC 1, Esai and Ors. v. State (1976) 11 S.C. 39, Eze v. State (1976) 1 S.C. 125, Omogodo v. State (1981) 5 S.C. (no pagination), Peba v. State (1980) 8 – 11 S.C. 76, State v. Nafiu Rabiu (1980) 1 NCR 4 at 50, Section 138(1) of the Evidence Act, Nasiru v. State (1999) 2 NWLR (Pt.589) 87 at 89, Teper v. R. (1952) A.C.480, Adepetu v. State (1996) 6 NWLR (Pt.452) 90 at 113, Okpara v. State (2005) LPELR – 12677 (CA) 14 – 15, lfejirika v. State (1999) 3 NWLR (Pt.593) 59, Isiekwe v. State (1999) 9 NWLR (Pt.617) 43, Ochemaje v. State (2008) 15 NWLR (Pt.1109) 101, Ikuepenikan v. State (2011) 1 NWLR (Pt.1229) 465 – 466, Okolo v. State (1977) N.N.L.R. 1.<br< p=””
</br<
7
It was also argued that had the Court below viewed the evidence for the defence dispassionately it would not have disregarded the DW4’s evidence and the entire defence of the appellant and that the Court below relied on hearsay evidence of PW10 as well as PW11’s hearsay evidence to convict the appellant, more so the PW11 put the nautical miles of the territorial waters of Nigeria at 24 nautical miles contrary to the 12 nautical miles and also stated that Nigeria has contiguous zone which is not the case, therefore the Court below was wrong to have convicted the appellant on the said pieces of hearsay evidence vide Agoda v. Enamuotor (1999) 8 NWLR (Pt.615) 407, Judicial Service Committee v. Omo (1990) 6 NWLR (Pt.157) 407.
It was argued that the alibi of the appellant that the cargo of PMS product belonged to Benin Petroleum S.A Cotonou was not investigated, and that the respondent suppressed material evidence vital to the case of the defence in that the PW6 had admitted under cross-examination that there was another Lloyds Intelligence Report dated 22-05-2014, Exhibit L, which was downloaded subsequently by the EFCC after the report dated 29-04-14, Exhibit
8
K, which PW6 had affirmed to be the only Lloyds Intelligence Report downloaded by the EFCC.
It was argued that the investigation report of the Navy, statements obtained by the Navy, log book of the vessel showing the movement of the vessel were all suppressed by the respondent when subpoenaed from the respondent without offering any reason for the refusal, likewise the favourable report from the Embassy of Benin confirming the charter party agreement relied upon by the appellant to show the cargo was owned by Benin Petrol S.A. which was ignored by the Court below contrary to the position of the law that once a party refers to another party for information, the information provided by such party becomes binding on the party making the reference vide Section 23 of the Evidence Act; and that inspite of DW4’s cogent evidence in pages 1324 – 1367 of the record that there was a charter party agreement and the cargo belonged to the charterer, Benin Petrol S.A., which was confirmed by the Embassy of the Republic of Benin and certified true copies of the confirmation placed in evidence as public documents, Exhibits P4, T3 and T4, the Court below preferred the
9
hearsay evidence of PW10 and PW11 to convict the appellant contrary to law vide Agoda v. Enamuotor (supra); and that Exhibit M1 was tendered through DW1 who was subpoenaed for that purpose yet the Court below allowed the respondent to cross-examine the DW1 who was merely to produce the public document and have it tendered in evidence through him without subjecting him to cross-examination, therefore all the answers elicited from the DW1 under cross-examination should be expunged.
The appellant submitted that the evidence from PW10 and PW11 against her was hearsay, weak and circumstantial which the Court below wrongly used in convicting and sentencing her in disregard of the defence of alibi that the cargo laden with the vessel belonged to Benin Petroleum S.A. Cotonou and that the vessel drifted offshore Nigeria, so the Court below should not have sentenced the appellant on such evidence.
?It was argued that there was unchallenged evidence that the vessel had engine problem and came to anchor for repair as well as evidence showing the cargo of PMS product was not intended to be discharged in Nigeria, so the evidence of the PW3, PW4 and PWS on importation
10
of the cargo of PMS product without lawful authority and appropriate licence to deal with the petroleum product was baseless and that the Court below wrongly relied on Exhibits G, 1(1), 1(2), 1(3), J1, J3, J2A, J2B, K2, L and M when the evidence favouring the defence was genuine contrary to the finding of the Court below that there was serious doubt as regards the genuineness of the defence of the appellant, so the said perverse finding should be reversed as the Court below did not use the advantage of seeing the witnesses testify on the issue vide Fabunmi and Anor. v. Obaje and Anor. (1968) NMLR 242 at 247, Board of Gustoms and Excise v. Ibrahim Barau (1982) 10 S.C.48 at 137, Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484.
The appellant also argued that the makers of Exhibits K2, L and M did not testify yet the Court below gave probative value to the Exhibits and that while PWs stated that the vessel arrived Apapa, Lagos on 3-01-14 and remained there until the date of giving evidence and that there was no further movement after 30-01-14, PW3 stated contrariwise that the vessel was arrested on 19-02-14 within Lagos anchor whilst PW3 was on patrol showing
11
the finding by the Court below that the vessel did not even sail out of Nigeria to offshore Lome to load the PMS product had no valid basis in law as it was hinged on hearsay evidence; and that the Court below lost sight of the fact that charter party agreement may be couched in such a way as to permit a vessel to trade within a wide area, so the expression of doubt by the Court below that the cargo manifest attached to Exhibit A indicated the port of discharge to be any West African port but the charter party agreement indicated Cotonou tank farm as point of discharge of the cargo should not have been the case as the respondent did not proffer any evidence of the port of discharge anywhere in Nigeria.
It was argued by the appellant that the Court below was wrong when it held that the defence admitted possession of the cargo of PMS product without lawful authority or appropriate licence when what the defence maintained was that the appellant did not require licence or authority to carry the cargo of PMS product from Lome for discharge in Cotonou and that the finding made by the Court below that the application for licence made after the arrest of the
12
vessel showed the appellant and the others knew they lacked the lawful authority or appropriate licence to deal with the PMS product could not have been an admission that the cargo of PMS product laden with the vessel offshore Lome for discharge at Cotonou required licence from the Nigerian authorities when at best it may constitute evidence of a desire to deal with petroleum product in Nigeria in the future therefore the said misconception, according to the appellant, played heavily in the mind of the Court below to presume the appellant guilty of the offences charged.
It was contended that the Court below was wrong in placing the burden of proof on the appellant that the PMS product belonged to Benin Petroleum S.A., being the charterer of the appellant’s vessel, when in law the burden of proof is always on the prosecution to establish the offence beyond reasonable doubt as the accused is presumed innocent vide Section 36(5) of the 1999 Constitution, George v. F.R.N. (2011) 10 NWLR (Pt.1254) (no pagination), Abadom v. State (1997) 1 NWLR (Pt.476) 1, Akinyemi v. State (1999) 6 NWLR (Pt.607) 449, Aigbadion v. State (2000) 4 S.C. (Pt.1) 1 at 15 – 16, Okolo
13
v. C.O.P. (1977) N.N.L.R. 1, Ifejirika v. State (1999) 3 NWLR (Pt.593) 59, Akinfe v. State (1988) 3 NWLR (Pt.85) 729.
It was also argued that, in any event, Exhibit N24, the charter party agreement, evidenced that the cargo of PMS product belong to Benin Petrol S.A., a foreign company, and that suspicion no matter how strong cannot replace legal proof vide State v. Ogbubunjo (2001) 13 WRN 1, Idowu v. State (1998) 11 NWLR (Pt.574) 354, therefore the evidence of PW3 in pages 963 – 971 of the record on the arrest of the vessel with the cargo of PMS product was mere suspicion which the Court below should have discountenanced, so urged the appellant; that there was no DW10 in the case therefore the reference to DW10 in the judgment of the court below is wrong; that the respondent should have called an official of Benin Petrol S.A. to testify in the matter to prove the guilt of the appellant; that PW7, an official of SGS Lagos, cannot lawfully confirm an operation carried out offshore Lome, when no official of SGS Lome testified in the matter; and that most, if not all of the documents/reports tendered in evidence were not tendered through the makers, nor were
14
they called to testify on the documents and be cross-examined upon, therefore the documents tendered in evidence are documentary hearsay and unreliable and should not have been countenanced by the Court below videMark v. Abubakar (2009) 2 NWLR (Pt. 1124) 79 at 184 – 185, Okafor v. Okpara (1995) 1 NWLR (Pt.374) 749.
It was finally argued by the appellant that the Court below was wrong when it ordered the judgment to be executed within 21 days in disregard of the constitutional and statutory period of 90 days within the appellant was to exercise her right of appeal vide Sections 240 and 241 of the 1999 Constitution, Section 24(2)(b) of the Court of Appeal Act, 2004 and Order 17 Rule 17 of the Court of Appeal Rules, 2011. The appellant concluded by requesting for the appeal to be allowed and the judgment of the Court below set aside.
?
The respondent’s brief was filed on 04-10-16, but deemed as properly filed on 28-02-17. It was argued therein that the appellant’s vessel was arrested within Nigeria territorial waters where she dropped anchor vide the admission of the captain of the ship in Exhibit 7 in page 21 of the record and the evidence of PW3 in pages
15
963 and 968 of the record as well as the evidence of PW9 in page 1036 of the record and the evidence of the arresting captain, PW11, in page 1062 of the record coupled with the admission of DW1 in pages 1194 – 1195 of the record, therefore the Court below was right to find that the appellant was arrested in Nigeria territorial waters with 1,457 metric tons of PMS product without lawful authority or appropriate licence on 19-02-2014 and that the Court should not interfere with the said findings of fact which are borne out by the evidence; and that the arrest of the appellant is covered by Section 94 of the Administration of Criminal Justice Act, 2015 and Article 73 of the United Nations Convention on the Law of the Sea.
?
The respondent argued that the evidence established the essential ingredients of the offence in that PW1 – PW11 proved that the appellant and her co-conspirators agreed to commit the unlawful act of dealing with PMS product without lawful authority or appropriate licence when according to the unchallenged evidence of PW3, PW10 PW1 1 the appellant’s vessel laden with the PMS product was arrested in Nigeria territorial waters with 1 ,459
16
metric tons of PMS product and a crew onboard without lawful authority or appropriate licence on 19-02-14 coupled with the evidence of the forgery of the attachments to Exhibits A by the accused to show SGS inspection of the cargo as found out by PW1, PW7 and PW11 when there was no SGS inspection, so the offence of conspiracy was proved as well as the substantive offence of dealing with petroleum PMS product in Nigeria without lawful authority or appropriate licence vide Alake v: State (1997) 7 NWLR (Pt.205) 567 at 591, Okeke v. State (1999) 2 NWLR (Pt.590) 265 at 266, Nwosu v. State (2004) 15 NWLR (Pt.897) 466 at 486, Gbadamosi v. State (1992) 6 NWLR (Pt.196) 182, Nwankwo v. FRN (2003) 4 NWLR (Pt.809) 1 at 37, Sheriff v. Immam (2005) 5 NWLR (Pt.914) 162 – 163, Emu v. State (1980) 2 NCR 297 at 302 – 303, Smart v. State (1974) 9 NSCC 575 at 581, Ukpe v. State (2001) WRN 84 at 113, Agwuna v. A.G., Federation (supra) Ogunsowobo and Ors. v. I.G.P. (1958) WNLR 23 at 24, George Abel Scott v. The King 13 WACA 25, Nigerian Air Force v. Kamaldeen (2007) 7 NWLR (Pt.1032) 164 at 191, Babalola v. State (1989) 4 NWLR (Pt.115) 264 at 277 – 278, Nigerian Air Force v. James
17
(2002) 18 NWLR (Pt.798) 295 at 322, Osondu v. FRN (2000) 12 NWLR (Pt.682) 483 at 504- 505, Akinbisade v. State (2006) 17 NWLR (Pt.1007) 184 at 203, Anim v. FRN (2014) LPELR – 23219 CA and Section 19(6) of the Miscellaneous Offences Act.
The respondent argued that the uncontested evidence of PW2 and Exhibits E1, E2 and E7, G, H, l, J, K1 , K2, L, M, N, that the appellant was not licensed to deal with PMS product amounted to an admission of the offence vide Anim and Ors. v. FRN (supra) at 34, Ubani and Ors. v. The State (2003) 12 SCNJ lll at 130, Offorlete v. State (2007) 7 SCNJ 162 at 170 and 183, Ola v. State (2013) LPELR – 21972 CA 22; and that the appellant’s vessel was arrested anchored in Nigeria territorial waters with commercial quantity of PMS product on board without lawful authority or appropriate licence and that a vessel in distress merely passing on the territorial waters of another nation provided the vessel did not carry out any form of illegality should have made a distress call and that innocent passage does not entitle the vessel to engage in illegal activities.
?
The respondent argued that from the unchallenged evidence of PW2, PW3,
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PW4, PW10, and PW11, and also Exhibits E1 and E2 the appellant’s vessel did not have the lavyful authority or appropriate licence to carry PMS product at the time of her arrest on 19-02-14 and that it was after the arrest that the appellant was given coastal vessel licence by the DPR on 21-03-14 upon an application on 26-02-14 showing it was 24 days after the arrest that the appellant obtained the licence; and that the captain of the appellant’s vessel even admitted the absence of the certificate when he stated in his extra-judicial statement on 28-04-2014 that appellant did not have the certificate to deal with PMS product at the time of arrest on 19-02-14; and that right of safe or free passage does not absolve a party from criminal liability for any criminal act committed within Nigeria and that the DW4 admitted in his extra-judicial statement that the appellant’s vessel carried 1,400 metric tons of PMS product and dropped anchor in Lagos baron on 06-02-2014 till the date of the arrest on 19-02-2014 therefore the finding of fact made by the Court below in page 1825 of the record in that regard should not be disturbed as it is supported by the evidence and
19
Article 19(2) and Article 73 of UNCLOS.
It was argued that bringing goods into the country from another country by natural construction constituted importation vide Black’s Law Dictionary, 8th Edition, 771, NDIC v. Okem Enterprises Ltd. (2004) 10 NWLR (Pt.880) 107, Adigun v. A.-G., Oyo State (1987) 1 NWLR (Pt.53) 678, Ojokolobo v. Alamu (1987) 3 NWLR (Pt.61) 377, Tasha v. UBN Plc (2002) 3 NWLR (Pt.753) 99, Duru v. FRN (2013) LPELR – 199930 SC. Wike v. FRN (2009) LPELR – 8077.
The respondent contended that the excuse that the appellant’s vessel developed engine problem and could not sail and was forced by high wind to drift was not entirely correct as DW4 testified that one of the engines was working and he managed the appellant on the working engine to the place of anchor in Apapa Port, Lagos on 06-02-2014.
The respondent relied on Section 4 of the Petroleum Act read with Section 17(b) of the Miscellaneous Offences Act to submit that the attachments to Exhibit A were forged to suggest that certificate was obtained from SGS and that the cargo of PMS product was received from a vessel called MT ALLMAR under supervision of SGS which discredited
20
the defence case; that a careful look at the cargo manifest, Exhibit A, indicated offshore Lome as the port of loading, while port of discharge is stated to be any West African country and the certificate of quantity stated the appellant was flying Nigerian while the time log loading stated the appellant was flying Togo flag as well as the admission by clauses 6 and 7 of Exhibit N24 that the cargo was to be loaded in Lome and discharged at Cotonou and on the other hand that the cargo was loaded at Cotonou to be discharged at Cotonou tank showing a sharp contradiction in the evidence; and that the DW4 upon seeing the chart Exhibit 6 and the public notice Exhibit M1 admitted that the appellant was arrested in the territorial waters of Nigeria vide page 1195 of the record.
The respondent argued that the documents purported to have come from Benin Petrol S.A., which were examined by DW3 were forged vide pages 1203 – 1224 of the record and was properly not be acted upon by the Court below; that the DW4, the captain of the appellant’s vessel, appellant’s vessel had no lawful authority or appropriate licence to carry PMS and that the naval permit the appellant’s
21
vessel had 380 metric tons of AGO product vide page 1380 of the record; the DW4 admitted that the voyage was captured in the Lloyd’s list, Exhibits K2, L and M and also that Exhibit N24 the charter party agreement, had Cotonou as the port of loading and Cotonou as the port of discharge; the DW4 finally admitted that he was on aboard the vessel carrying PMS product which was arrested in Nigeria territorial waters and that other vessels were anchored around the appellant at the material time vide pages 1384 – 1460 of the record.
The respondent also argued that the Court below was right in attaching no weight to Exhibits T3, T4 and P4 on the ground that they were fraudulently obtained, more so the DW5 who translated the documents could not persuade the Court below that he is a witness of truth vide pages 1469 – 1470; that the documents are documentary hearsay vide pages 1819 – 1820 of the record; and that the failure of the appellant to call a D. O. Botoku Esq. to give evidence of what transpired at the Embassy Benin amounted to the withholding of evidence videAremu v. The State (1991) 7 NWLR (Pt.201) 1 at 17 – 18; and that Exhibit A, the cargo documents,
22
were also forged as found by the Court below in pages 1816 – 1818 of the record.
It was argued that the Lloyds Intelligence Report, Exhibits K2, L, M and N, showed appellant did not sail out of Nigeria in late January, 2014. The Court below found the Exhibits authentic and this Court should affirm the finding; that the forfeiture of the appellant’s vessel and the cargo was based on Section 1(17) of the Miscellaneous Offences Act; that paragraph 4(m), (n) and (o) of the affidavit for forfeiture in pages 608 – 668 of the record as well as page 10 of the record and Exhibits P1, P2 and P3 together with the evidence of DW4 under cross-examination in pages 1432 – 1434 of the record indicated that the monies forfeited are proceeds of crime of dealing with PMS product without lawful authority or appropriate licence; and that at the interlocutory stage of the proceedings when the respondent sought an order of interim forfeiture of the monies, the parties had agreed that such an order could be made in the final judgment, so the appellant cannot be heard to object to it now.
The respondent finally argued that the Court below did not limit the right of the
23
appellant to appeal to 21 days and as a matter of fact the appellant filed the appeal on within 90 days 20-11-15 vide page 1966 of the record; therefore the appeal should be dismissed and the decision of the Court below upheld.
The reply brief filed on 15-03-17 re-emphasised the arguments in the appellant’s brief where it referred to the case of Ocean Fisheries (Nig.) Ltd. v. Board of Customs and Excise and Anor. (supra) and the evidence of the PW8 in pages 1025 – 1026 of the record and PW9 in pages 1033 – 1042 of the record; also, on the order of forfeiture not supported by any evidence of the monies domiciled in the (FCMB) First City Monument Bank being proceeds of crime; and on the duty of an appeal Court to evaluate evidence when the trial Court failed to do so vide Fabunmi and Anor. v. Obaje and Anor. (1968) NMLR 242 at 247, Board of Customs and Excise v. Barau (supra); also, on the consequential order that the judgment be enforced within 21 days as curtailing the appellant’s constitutional right of appeal vide Obikoya v. Ediala (1989) NWLR (Pt.96) 38, Almaroof v. Awoyemi (1999) 10 NWLR (Pt.623) 445.
The reply brief took objection to the
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respondent’s brief that it exceeded 30 pages contrary to the rules of the Court and should be struck out vide Solanke v. Somefun (1974) 1 SC 141 at 151, Re Appolos Udo (1987) 4 NWLR (Pt.63) 120 at 126, Alale v. Olu (2001) 7 NWLR (Pt.711) 119 at 127, Willoughby v. International Merchant Bank (Nig.) Ltd. (1987) 1 NWLR (Pt.48) 105; upon which the appellant urged that the appeal be allowed and the decision of the Court below set aside and said order of forfeiture quashed.
In my modest view, the respondent’s brief of argument which is 35 pages complies with Order 19 Rule 6(a) of the Court of Appeal Rules 2016 (Rules of the Court) which stipulates that every brief filed in the Court shall not exceed 35 (thirty five) pages. The objection to the respondent’s brief that it exceeds 30 pages in thus untenable and is hereby not countenanced.
The territorial jurisdiction of a criminal Court is normally determined by looking at the enabling law setting out the jurisdiction of the Court alongside the charge sheet vide Egunjobi v. F.R.N. (2013) 3 NWLR (Pt.1432) 534, Roda v. F.R.N. (2015) 10 NWLR (Pt.1468) 427 at 472, F.R.N. v. Nwosu (2016) 17 NWLR (Pt.1541) 226 at
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304. Evidence in the case may also assist in determining the jurisdiction of the Court vide Roda v. F.R.N. (supra) at 472 thus –
“Though the criminal jurisdiction of a Court may be determined by reference to the charge alone, in appropriate cases, it may be necessary to lead some evidence before it becomes clear enough to make a decision on the point. Jurisdiction is never an issue the Court will find too late to resolve. After all it is either the Court has it or not. Thus even after the conclusion of trial if the Court on its own discovers that it has proceeded without the requisite competence, being a question of law, the Court can retrace it’s path.”
The charge sheet in pages 1 – 4 of the record indicated that the alleged offences were committed at Lagos within the jurisdiction of the Court below. By the charge sheet the issue of jurisdiction is resolved to the effect that the alleged offences were committed at Lagos within the territorial jurisdiction of the Court below.
?
The captain of the appellant’s vessel, a Mr. Olaniran Olabode, admitted in his extra-judicial statement in the EFCC Exhibit N7 in page 21 of the record that the appellant’s
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vessel laden with 1,400 metric tons of PMS product dropped anchor at Lagos baron on 06-02 -2014 till the date of her arrest on 19-02-2014. Likewise, the evidence of PW3 in page 968 of the record, the PWS in page 1036 of the record, the PW11 in page 1062 of the record and the DW1, a Mr. Aliyu Sulaiman, of Nigerian Ports Authority (N.P.A.) who stated under cross-examination in pages 1194 – 1195 of the record that the appellant’s vessel was arrested within Nigeria territorial waters.
These pieces of evidence are credible and the Court below believed the evidence to find as a fact in its judgment that the undisputed evidence established that the appellant’s vessel was arrested in Nigeria territorial waters laden with 1,457 metric tons of PMS product. The appellant’s vessel was therefore arrested within the jurisdiction of Court below at the material time and the Court below accordingly had jurisdiction over the appellant. The issue of jurisdiction is thus resolved against the appellant.
The Court below found as a fact that the documents attached to Exhibit A for the lifting of the PMS product offshore Lome were not genuine. The Court below also found as
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a fact that the version of the appellant that the vessel had engine problem and drifted into Nigerian port for repair when it was shorter for the vessel to sail to Cotonou with one of her functioning engines in that condition, if any, than the longer route of reaching Lagos port were reasonable deductions from the evidence adduced before the Court below which concluded aright, in my opinion, that the issue of faulty engine was a pre by the appellant to mask their criminal venture. Likewise, the attachments to Exhibit A which were also a pre to mask the criminal venture of the appellant and the others onboard the vessel as rightly held by the Court below in its judgment.
The findings of fact made by the Court below in its judgment in pages 1816 – 1827 of the record on the criminal liability of the appellant for the offences charged having been supported by the evidence in the record and premised on sound reasoning, cannot be faulted and are hereby affirmed vide Haruna v. A.-G., Federation (2012) 9 NWLR (Pt.1300) 419, Akinbisade v. State (2006) 17 NWLR (Pt.1007) 184 at 211, Nwosu v. Board of Customs and Excise (1988) 5 NWLR (Pt.93) 225.
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The Miscellaneous Offences Act and the Petroleum Act are clearly worded. There is no ambiguity in the provisions of the two enactments as they relate to the offences charged. The controlling factor under the two enactments is that petroleum product be handled with licence or appropriate lawful authority. The preamble is therefore unnecessary in the interpretation of the provisions of the two enactments vide Osawe v. Registrar of Trade Unions (1985) 1 NWLR (Pt.4) 755.
The appellant’s vessel was arrested with the PMS product at the scene of crime destroying any defence of alibi thereby vide Njovens v. State (1973) NNLR 76 at 93 thus-
?If the prosecution adduced sufficient and accepted evidence to fix the person at the scene of crime at the material time, surely his alibi is thereby logically and physically demolished. The Supreme Court had had the occasion to consider this point in Hemyo Atam and Anor. v. The State S. C. 632/66 decided on the 11th January, 1967.”
I agree with the Court below that a Nigerian vessel or a vessel carrying Nigerian flag not being a foreign vessel cannot claim right of innocent passage on Nigerian waters under
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Article 18 of UNCLOS. But whether the passage is innocent or not the vessel so passing is not immune from prosecution if she commits an offence against the domestic or municipal laws of the coastal state.
The Lloyds Intelligence Report tendered in evidence is a piece of documentary evidence which is a hanger to assess oral evidence vide Kimdey and Ors. v. Govt. of Gongola State (1988) 2 NWLR (Pt.77) 445, and which proved that the vessel did not leave the shores of Nigeria at all material times which rendered the evidence on importation of the PMS product suspect and the finding made thereon by the Court below perverse; consequently, the offence of importation of the PMS product with respect to count 3 of the charge sheet was not established beyond reasonable doubt and the Court below was wrong in convicting the appellant on it; consequently, I would set aside the conviction on count 3 of the charge sheet.
However, that is not the case with the offences of storage of the PMS product without lawful authority or appropriate licence and the offence of dealing with PMS product without lawful authority or appropriate licence contrary to Section 4(1) and
30
(6) of the Petroleum Act and Section 1(17)(a) and (b) of the Miscellaneous Offences Act.
The appellant’s vessel was arrested in Nigeria with the cargo of 1,459 metric tons of PMS product stored in her tank. The PMS product was in large quantity. The undisputed evidence was that the appellant’s vessel was only entitled by the naval permit, Exhibit H, to carry AGO product limited to 380 metric tons thereof. The appellant did not produce the appropriate licence for the vessel to carry PMS product in Nigeria. Nor did the appellant establish that she had lawful authority for the vessel to carry the PMS product in Nigeria. Section 1(17)(a) and (b) of the Miscellaneous Offences Act provides –
“Any person who without lawful authority or an appropriate licence –
(a) imports, exports, sells, offers for sale distributes, or otherwise deals with or any crude oil, petroleum or petroleum product in Nigeria.
(b) does any act for which a licence is required under the Petroleum Act.
Shall be guilty of an offence and liable on conviction to imprisonment for life, and in addition, any vehicle, vessel, aircraft or other conveyance used in connection
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therewith shall be forfeited to the Federal Government.”
See also Section 4 of the Petroleum Act.
The appellant’s vessel carried the cargo of 1,459 metric tons of PMS product within Nigeria territorial waters without lawful authority or appropriate licence contrary to Section 1(17)(1) of the Miscellaneous Offences Act (supra) and Section 4 of the Petroleum Act (supra).
The appellant’s vessel having stored and dealt with PMS product in Nigeria at the material time, only an appropriate licence shown by the appellant or evidence of lawful authority would have exonerated the appellant from criminal liability. The evidence is settled that the appellant did not have the appropriate licence. Nor did the appellant establish the lawful authority to absolve her of criminal liability. Rather it was some 24 days after the commission of the offence(s) that the appellant obtained a licence from the DPR in Exhibits E1 and E2 to deal with PMS product. The act of obtaining Exhibits E1 – E2 after the commission of the said offences showed the appellant had no appropriate licence nor lawful authority at the time her vessel was arrested with the PMS product which
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attached criminal liability to the appellant.
Statutory provisions dealing with unlawful possession of product or substance and/or without licence or lawful authority wear the toga of strict liability. Once a person is found in possession of the controlled product or substance or the prosecution has proved possession the onus shifts to the person found in possession of the product or substance to justify his possession. See the proviso to Section 36(5) of the 1999 Constitution, Section 139(1) of the Evidence Act and Nigeria Air Force v. Kamaldeen (2007) All FWLR (Pt.361) 1676. If lawful authority is needed by the statute to justify the possession the person found with the controlled product or substance has the bounden duty to produce evidence of the lawful authority.
Where an appropriate licence is required the person found in possession of the controlled product or substance must produce the appropriate licence to justify his possession of the product or substance. See for example, Attorney-General Eastern Nigeria v. Osiala (1964) N.M.L.R.104 at107 at 107 to the effect that a person found in possession of a controlled product or substance has the
33
burden to produce the appropriate licence or show the lawful authority for having the product or substance in his possession following the English case of R. v. Oliver (1943) 2 All E.R. 800. See also Slap v. A.-G., Federation (1968) N.S.C.C. 19.
The jugular issue was the locus criminis: The place the appellant’s vessel was arrested with the PMS product without lawful authority or appropriate licence is the linchpin of the case under Section 4(1) and (6) of the Petroleum Act and Section 1(17)(a) and (b) of the Miscellaneous Offences Act. Here it is clear from the evidence that the appellant’s vessel was arrested in Nigeria territorial waters. Whether the controlled cargo the vessel carried was owned by a third party or whether there was another Lloyds Intelligence Report and Naval record showing the movement of the appellant’s vessel did not detract from constant fact that the vessel was arrested in Nigeria on 19-02-14 laden with the controlled PMS product and the only defence open to the appellant was to show the lawful authority or the appropriate licence she had for the vessel to be laden with the controlled PMS product in Nigeria.
?It is therefore
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no defence that the PMS product was owned by a third party and the vessel was on charter and the movement of the vessel not established with certainty as the offences under discussion are not based on ownership of the PMS product as such but on being found with it in Nigeria without lawful authority or appropriate licence. Therefore the arguments of the appellant on these issues are, with maximum respect, futile.
At any rate, having found the appellant’s vessel laden with the controlled PMS product in Nigeria territorial waters, the onus was on the appellant to call on the alleged charterer to testify to establish her defence that she did not own the PMS product as rightly held by the Court below. In a plea of alibi once the prosecution discharges the evidential burden of disproving the alibi as in this case where the appellant’s vessel was arrested with the PMS product laden with the vessel, evidence of ownership of the cargo of PMS product, if material, should have been called by the appellant to prove that she did not own the cargo of PMS product, more so the Charter Party Agreement, Exhibit N24, in pages 2940 – 2944 of the record was not signed by the
35
alleged charterer and would not, standing alone, constitute a viable defence that the charterer owned the cargo of PMS product in question.
It is also hard to comprehend that the appellant as owner of the vessel knowing the vessel was not lawfully authorised or was not given appropriate licence by the relevant authority to carry PMS product would charter her to a third party for the illegal transaction of transporting the controlled PMS product and turn round as did the appellant to contend that has is not criminally responsible in the circumstances. Such contention is, with maximum respect, sheer hocus-pocus.
The evidence of the discovery of the 1,459 metric tons of PMS product Iden with the appellant’s vessel with a crew at the material time and the appellant’s failure to produce the appropriate licence or lawful authority for the vessel to carry the PMS product in Nigeria entitled the Court below to draw the legitimate inference that the appellant’s vessel with the crew acted in league or concert to commit the offence of storing and dealing with the PMS product in the vessel of the appellant without appropriate licence or lawful authority at the
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material time thus completing the offence of conspiracy vide Njovens and Ors. v. The State (1973) (supra) at 96 thus-
“The gists of the offence of conspiracy is the meeting of the mind. This is hardly capable of direct proof… Hence, conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent ciminal purpose in common between them and in proof of conspiracy the acts or omissions of any of the conspirators in furtherance of the common design may be and very often are given in evidence against any other or others of the conspirators.”
See also Posu v. State (supra), Osuagwu v. State (2013) 5 NWLR (Pt.1347) 560 at 391 – 392.
It was with the conviction of the appellant by the Court below that the order of the forfeiture of N66,069,305.07 in the account of the appellant No.0342986018 domiciled in FCMB Plc and $975,694.50 in account No.0342986032 domiciled in FCMB Plc was made by the Court below. The monies ordered forfeited were stated on oath by the respondent’s agency (EFCC) in pages 611 – 612 of the record of appeal (the record) thus –
“The proceeds of the illegal deals in the
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petroleum products were warehoused in the 2nd Accused’s (Appellant) account now sought to be attached by the order of this Honourable Court vide this application. Attached and marked Exhibit EFCC 01 is a copy of the said accounts and the 2nd account with the First City Monument Bank (FCMB) Ltd.
That upon discovering that the said account is the designated account of the 2nd Accused Person to warehouse proceeds of oil theft, the Applicant wrote to the First City Monument Bank instructing the bank to attach the said account. Attached and marked exhibit EFCC 02′.”
The statements of account in question which are in pages 3015 – 3061 of the record were admitted as Exhibits P2 and P3. That the accounts have been used in depositing monies by P.M.T./BO Benin petrol is evident from some of the answers given by the DW4 gave under cross-examination in page 1447 of the record.
The evidence for the respondent in the record raised the issue that the monies in the accounts in Exhibits P2 and P3 were either directly or indirectly got from proceeds of illegal dealing with petroleum product by the appellant.
?
The appellant who owns the accounts, Exhibits P2
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and P3, did not tender any satisfactory evidence through any of the signatories to the accounts to contest the evidence of the respondent at the Court below. There was also an interim order of forfeiture of the said sums of money. The appellant agreed at the hearing of the interlocutory application for interim forfeiture of the monies that it could be made final order at the conclusion of the case. The forfeiture of the said monies was therefore properly ordered by the Court below and is hereby affirmed.
The enforcement of the judgment within 21 days as ordered by the Court below did not infringe any constitutional and/or statutory provisions. Judgment take effect on the day pronounced, unless specific date is assigned for the judgment to take effect at the time of its delivery or pronouncement.
In the final analysis, I find no merit in the appeal and hereby dismiss it and affirm the decision of the Court below (Abang, J.).
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I agree
?JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the draft of the lead judgment just delivered by my learned brother
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JOSEPH SHAGBAOR IKYEGH JCA and I agree with the judgment, adopt it as mine with nothing further to add.
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Appearances:
Mr. A. Olorunfemi with him, Chief A. T. Dania, Mr. G. Awoseye and Mr. S. AwodeinFor Appellant(s)
Mr. R. Oyedepo with him, Mr. A. M. Anana)
For Respondent(s)
Appearances
Mr. A. Olorunfemi with him, Chief A. T. Dania, Mr. G. Awoseye and Mr. S. AwodeinFor Appellant
AND
Mr. R. Oyedepo with him, Mr. A. M. Anana)For Respondent
