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MAINA v. FRN (2022)

MAINA v. FRN

(2022)LCN/17055(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, November 24, 2022

CA/ABJ/CR/1044/2021

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

FAISAL ABDULRASHEED MAINA APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

 

RATIO

THE BURDEN OF PROOF IN THE CRIMINAL JUSTICE SYSTEM

Our adversarial criminal justice system is accusatorial and the prosecution has the onus of proving the commission of the crime charged. This is so on account of the provisions of Section 36 (5) of the 1999 Constitution, as amended, which provides that every person charged with a criminal offence shall be presumed innocent until he is proven guilty. The necessary corollary of this presumption of innocence is the cardinal principle of law which requires the prosecution to prove the commission of the crime by the person charged with a criminal offence. By Section 135 of the Evidence Act, 2011 the standard of proof in a criminal case is proof beyond reasonable doubt. There is nothing esoteric in the apothegm that in criminal trials the burden is on the Prosecution to prove the offences charged beyond reasonable doubt. Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote probability in his favour, which can be dismissed with the sentence: “of course it is possible, but not in the least probable”, then the case is proved beyond reasonable doubt. See MILLER vs. MINISTER OF PENSIONS (1947) 2 ALL E.R. 372, MICHAEL vs. THE STATE (2008) LPELR (1987) 1 at 24 and BAKARE vs. THE STATE (1987) 3 SC 1 or (1987) LPELR (714) 1 at 12-13.
Proof beyond reasonable doubt does not mean or import beyond any degree of certainty. The term strictly means that within the bounds of the evidence adduced before the Court, no Tribunal of justice would convict on it having regard to the nature of the evidence led in the case. It should be a proof that excludes all reasonable inference or assumption except that which it seeks to support. It must have clarity of proof that is readily consistent with the guilt of the accused person. The expression does not connote any ungainly and abstract construction or understanding. A priori, it is a concept founded on reason and rational and critical examination of a given set of facts and the law rather than a fanciful, whimsical or capricious and speculative doubt. See THE STATE vs. ONYEUKWU (2004) 14 NWLR (PT 893) 340 at 379-380, ONIANWA vs. THE STATE (2015) LPELR (24517) 1 at 40-41 and TAIYE vs. THE STATE (2015) LPELR (25783) 1 at 26-27. Proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. To captivate our attention in ascertaining whether the lower Court rightly held that the offences charged were proved beyond reasonable doubt are the set of facts established by the prosecution evidence, vis-à-vis the law under which the offences were charged.
PER OGAKWU, J.C.A.

DEFINITION OF MONEY LAUNDERING

Section 15 (2) (d) of the Money Laundering (Prohibition) Act, 2011 under which the offence was charged stipulates as follows:
“15. (2) Any person or body corporate, in or outside Nigeria, who directly or indirectly –
(d) acquires, uses, retains or takes possession or control of; any fund or property knowingly or reasonably ought to have known that such fund or property is, or forms part of the proceeds of an unlawful act; commits an offence of money laundering under this Act.”
From the stipulations of the law, for the prosecution to succeed in proving the offence charged in Count 2, it must prove that the Appellant indirectly controlled the funds and that the Appellant knew or reasonably ought to know that the funds forms part of the proceeds of an unlawful act. See SHEKARAU vs. FRN (2020) LPELR (52029) 1 at 36-37, DOKPESI vs. FRN (2021) LPELR (55005) 1 at 22 and DAAR INVESTMENT AND HOLDING CO. LTD vs. FRN (2021) LPELR (55003) 1 at 22-23.
PER OGAKWU, J.C.A.

WHETHER OR NOT IT IS EVERY ERROR OR MISTAKE ON THE PART OF THE COURT THAT VITIATES THE JUDGEMENT OF THE COURT

It is abecedarian law that it is not every error or mistake on the part of a Court that will vitiate the judgment of the Court. It is only where the error or mistake is so fundamental as to occasion a gross miscarriage of justice that it will vitiate the judgment. See YARO vs. THE STATE (1972) NSCC 160 at 165, AREMU vs. THE STATE (1991) LPELR (545) 1 at 23, ALI vs. THE STATE (2015) LPELR (24711) 1 at 24-25, THE STATE vs. USMAN (2021) LPELR (55202) 1 at 15-16, KAYODE vs. THE STATE (2016) LPELR (40028) 1 at 36 and BERENDE vs. FRN (2021) LPELR (54993) 1 at 15. In the words of Augie, JSC in NWODO vs. THE STATE ​(2018) LPELR (46335) 1 at 19:
“It is well-settled that the judgment of a lower Court will not be reversed on the basis of an error, which is minor or immaterial, and has no direct impact on the reasoning leading to a decision. It is only when the error is substantial, in that it has occasioned miscarriage of justice that this Court will be bound to interfere.”
PER OGAKWU, J.C.A.

THE DEFINITION OF MISCARRIAGE OF JUSTICE

​Miscarriage of justice has been held to be a failure of justice. A miscarriage of justice occurs where there are grave or serious errors in the proceedings as to make the proceedings fundamentally flawed. It means the failure of the Court to do justice. For there to be a miscarriage of justice, the error or irregularity must go to the root of the case. See DAMINA vs. THE STATE (1995) LPELR (918) 1 at 44-45, MMAMMAN vs. FRN (2013) LPELR (20082) 1 at 12, NWANKWOALA vs. FRN (2018) LPELR (43891) 1 at 20 and GOSHELENG vs. THE STATE (2021) LPELR (56466) 1 at 14-15. In the diacritical circumstances of this matter, the sentence imposed in the absence of the Appellant did not occasion a miscarriage of justice. PER OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The appeal is against the decision of the Federal High Court, Abuja Division, Coram Judice: Abang, J., delivered on 7th October 2021. The Appellant was arraigned before the lower Court on a three count charge of operating an anonymous account by concealing his true identity, indirectly controlling funds which he reasonably ought to know forms part of the proceeds of unlawful activity and failure to make full disclosure of his assets in the Declaration of Assets Form. The offences were contrary to and punishable under the provisions of the Money Laundering (Prohibition) Act, 2011 and the Economic and Financial Crimes Commission (Establishment) Act, 2004.

​In proof of the offences charged, the Respondent called three witnesses. In the course of the testimony of the third witness, the Appellant who was on bail stopped attending Court, whereupon, on the application of the Respondent, the lower Court, pursuant to the provisions of Section 352 (4) of the Administration of Criminal Justice Act, 2015, ordered that the trial continue in the absence of the Appellant. The trial continued and after the Respondent closed its case, the Appellant remaining absent, his defence was foreclosed. After the final address by the Respondent, the lower Court proceeded to judgment, convicted the Appellant as charged and sentenced him to five years imprisonment on each of Counts one and three of the Charge, and fourteen years imprisonment in Count two.

The Appellant, miffed by the judgment of the lower Court appealed against the same by Notice of Appeal filed on 8th November 2021. The judgment of the lower Court is at pages 878-898 of Volume 2 of the Records of Appeal, while the Notice of Appeal is at pages 899-913 of Volume 2 of the Records of Appeal. The extant Notice of Appeal on which the appeal was argued is the Amended Notice of Appeal filed on 5th July, 2022, pursuant to the order of this Court made on 30th June, 2022.

The two volume Records of Appeal having been compiled and transmitted, briefs of argument were filed and exchanged by the parties, which briefs learned Counsel adopted and relied upon at the hearing of the appeal. The briefs on which the appeal was argued are:
1. Appellant’s Brief filed on 13th April 2022
2. Respondent’s Brief filed on 24th April 2022
3. Appellant’s Reply Brief filed on 16th May 2022.
All the briefs were deemed as properly filed on 30th June 2022.

The Appellant distilled five issues for determination in his brief of argument as follows:
“I. Whether the trial Judge was right when he convicted the Appellant on count 1 which relates to operating anonymous accounts contrary to Section 11 (1) of the Money Laundering (Prohibition) Act, 2011 and punishable under Section 11 (4) (a) of the same Act whereas the Act does not contain a definition of what precisely constitutes operating of anonymous account and if this issue is answered in the positive, whether the prosecution proved beyond reasonable doubt that the Appellant operated the said anonymous accounts and that the money found in those accounts were to his knowledge, proceeds of illegal activities? (Grounds 1, 2, 3, 4, 5, 6 and 7).
II. Whether on the totality of evidence presented at the trial, the Prosecution proved the ingredients of the offence of money laundering against the Appellant to warrant his conviction? (Grounds 8, 9 10, 11, 12, 13, 14, 15 and 20)
III. Was the trial Court justified or right, in holding that the prosecution has proved the essential ingredients of the offence of knowingly failing to make full disclosure of assets against the Appellant? (Ground 16)
IV. Whether the trial Court was right howsoever by sentencing the Appellant in absentia? (Grounds 17 and 19)
V. Whether the trial Court exceeded its jurisdiction by sentencing the Appellant to the maximum terms of punishment for the offences charged? (Ground 18)”

On its part, the Respondent formulated two issues for determination, namely:
“i. Whether the Respondent by the evidence adduced before the trial Court proved its case in the three (3) counts charge beyond reasonable doubt to support the conviction of the Appellant.
ii. Whether the trial Court was right to sentence the appellant in absentia.”

​The issues crafted by the Respondent are concise, apt and succinct. Indeed, the said issues are distensible and encompass the five issues nominated by the Appellant. The Appellant’s issue numbers one, two and three are subsumed under the Respondent’s issue number one while the Appellant’s issue number four and five are subsumed under the Respondent’s issue number two. It is therefore on the basis of the Respondent’s issues that I will presently review the submissions of learned counsel and then resolve this appeal. Howbeit, I will take the liberty to tinker with the Respondent’s issue number two in order to bring out the pith of the disceptation therein. I will modify the said issue number two for it to read:
Whether the trial Court was right to sentence the Appellant in absentia and impose the maximum terms of imprisonment.

ISSUE NUMBER ONE
Whether the Respondent by the evidence adduced before the trial Court proved its case in the three (3) counts charge beyond reasonable doubt to support the conviction of the Appellant.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that numbered or anonymous account in Section 11 (1) of the Money Laundering (Prohibition) Act, which is the offence charged in Count 1, is not defined in the Act and therefore that the conviction of the Appellant for an offence that is not defined in any written law is unconstitutional. Section 36 (12) of the 1999 Constitution and the case of NYAME vs. FRN (2021) 6 NWLR (PT 1772) 289 at 375 were referred to. It was further contended that where the conviction is not set aside on this basis; then the conviction should be set aside because the prosecution failed to discharge the onus of proving the ingredients of the offence beyond reasonable doubt. The cases of UGBOJI vs. THE STATE (2018) 10 NWLR (PT 1627) 346 at 368, ADAMU vs. THE STATE (2019) LPELR-46902 (SC) at 9-10, OFORLETE vs. THE STATE (2000) LPELR-2270 (SC) at 15 and FRN vs. KAYODE-BECKLEY (2020) 16 NWLR (PT 1750) 219 at 259 were relied upon.

It was stated that the prosecution did not prove that the account in issue was an anonymous account; and that in interpreting a statute, the plain and ordinary meaning of the words used is to be applied vide BABABE vs. FRN (2019) 1 NWLR (PT 1652) 100 at 119 and OMATSEYE vs. FRN (2017) LPELR-42719 at 10-11. The meaning of anonymous in the Black’s Law Dictionary 10th Ed., page 111 and Websters Universal Dictionary and Thesaurus page 33 was cited and it was asserted that from the evidence of the PW1, neither the account nor the Appellant’s true identity are anonymous and therefore the evidence did not support the decision of the lower Court.

It was contended that the grain of an offence under Section 11 of the Money Laundering (Prohibition) Act is opening or maintaining an anonymous account and does not include being a co-signatory to the account of an identifiable business name or entity. It was maintained that the evidence led runs contrary to the charge and so the conviction should be set aside. The case of IBRAHIM vs. THE STATE (2015) LPELR-40833 (SC) at 38 was called in aid. It was posited that penal statutes are to be interpreted strictly without any tinkering and that the lower Court was wrong to import extraneous elements into the offence created under Section 11 of the Money Laundering (Prohibition) Act in order to convict. The cases of ROLAND vs. FRN (2018) LPELR-43686 at 32, UMOERA vs. COP (1977) LPELR-3371 (SC) at 15-16 and OMATSEYE vs. FRN (supra) were cited in support. It was asserted that the Appellant can therefore not be convicted for an act which is not an offence under Section 11 of the Money Laundering (Prohibition) Act. Section 36 (12) of the 1999 Constitution and the cases of AOKO vs. FAGBEMI (1961) ALL NLR 400, GEORGE vs. FRN (2013) LPELR-21895 (SC) at 18-19, FRN vs. IFEGWU (2003) 8 MJSC 36 at 56 and 59 and OMATSEYE vs. FRN (supra) were referred to.

The Appellant further submitted that the proof of the ingredient of maintaining an anonymous account is predicated on the existence of an anonymous account, since maintaining an account which is not an anonymous account, is not an offence under Section 11 of the Money Laundering (Prohibition) Act. It was opined that the evidence adduced by the prosecution did not establish that the Appellant maintained an anonymous account, as the evidence was to the effect that the Appellant was a co-signatory to the account and used it at different periods. It was maintained that the lower Court failed in its duty to evaluate the evidence before it and further failed to consider the doubts in the case of the prosecution thereby resulting in perversity and miscarriage of justice since the lower Court is not to look for excuses to shore up the prosecution case in order to convict. The cases of BASSEY vs. THE STATE (2019) 18 NWLR (PT 1703) 126 at 164 and NDIDI vs. THE STATE ​(2007) LPELR-1970 (SC) at 31 were relied upon.

The Appellant’s contention on his second issue is that the lower Court was wrong in holding that the prosecution proved the key ingredient of the offence charged in Count 2 of the Charge, as there was no evidence that the Appellant knew or reasonably ought to know that the funds were proceeds of an unlawful act. It was stated that the ingredients of an offence under Section 15 (2) (d) of the Money Laundering (Prohibition) Act are control of any funds and knowledge that the controlled funds from proceeds of an unlawful act vide DAIRO vs. FRN (2020) 10 NWLR (PT 1733) 482 at 513-514. It was asserted that the finding of the lower Court that the Appellant controlled the account is rooted in speculation and should be set aside. The cases of AHMED vs. THE STATE (2002) 1 MJSC 50 at 65-66, ORISA vs. THE STATE (2018) 11 NWLR (PT 1631) 453 at 471-472 and AJAEGBO vs. THE STATE (2018) 11 NWLR (PT 1631) 484 at 513 were cited in support.

​It was maintained that none of the prosecution witnesses testified as to the Appellant’s knowledge, on the basis of which an inference could be made that he reasonably ought to know that the funds were proceeds of an unlawful act and it was therefore speculative for the lower Court to have drawn the inference in a vacuum. The cases of SARAKI vs. FRN (2018) 16 NWLR (PT 1646) 405 at 448, AHMED vs. THE STATE (supra) at 65-66, ONAH vs. THE STATE (1985) LPELR-2668 (SC) at 13-15, ORISA vs. THE STATE (supra), AJAEGBO vs. THE STATE (supra) and DONDOS vs. THE STATE (2021) LPELR-53380 (SC) at 26-27 were called in aid.

On his third issue, the Appellant submits that the ingredients of the offence charged in Count 3 of the Charge are ownership of assets, failure to make full disclosure of the assets and knowingly failing to do so. It was stated that the prosecution did not prove that the assets belong to the Appellant and that the doubts in the case of the prosecution ought to be resolved in favour of the Appellant. The case of ABDU vs. THE STATE (2017) 7 NWLR (PT 1564) 171 at 186 was relied upon. It was posited that the testimony of the PW3 on Exhibit D8 (5) was hearsay and inadmissible as the PW3 did not arrest the Appellant or recover Exhibit D8 (5) from him. The cases of SARAKI vs. FRN (supra) at 452 and METUH vs. FRN (2020) 7 NWLR (PT 1723) 325 at 361 were referred to.

It was further stated that the letter, Exhibit 7, on the list of items recovered from the Appellant is incomplete as the said list is not attached to the letter, Exhibit 7. The Court was therefore urged to invoke Section 167 (d) of the Evidence Act on withholding of evidence against the prosecution. The case of OGUDO vs. THE STATE (2011) 18 NWLR (PT 1278) 1 at 31-32 was cited in support. It was further submitted that the prosecution failed to establish the mental element for the offence, which is that the Appellant knowingly failed to make full disclosure of his assets and that in the absence of such evidence, it was speculative for the lower Court to hold that the essential ingredients of the offence had been proved.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that by the marginal notes of Section 11 of the Money Laundering (Prohibition) Act as amended, the scope of the meaning of anonymous account had been expanded to include accounts in fictitious names. It was posited that to prove the offence charged in Count 1, the prosecution had to prove that the Appellant maintained/operated an anonymous account in a fictitious name by concealing his true identity; the details of the anonymous account and when it was maintained/operated. It was stated that the account is in the name of a registered business name, which by law is one and the same thing as the proprietor of the registered business name vide FCDA vs. UNIQUE FUTURE LEADERS INT’L LTD (2014) 17 NWLR (PT 1436) 213 or (2014) LPELR-23170 (CA) and ADAMU vs. FRN (2018) LPELR-46029 (CA) at 24-25. It was contended that the Appellant is not the proprietor of the business name and that the proprietor cannot legally vest or transfer ownership or proprietorship of the business name to another person since the business name has no legal personality of its own independent of the proprietor.

​It was therefore asserted that the Appellant cannot legally and lawfully be a signatory to a bank account of a business name of which he is not the proprietor. It was consequently submitted that the Appellant became a signatory to a bank account of a business name of which he is not the proprietor. It was further submitted that the Appellant became a signatory to the account in order to give the account anonymity, which conduct amounted to an offence under Section 11 (1) of the Money Laundering (Prohibition) Act. It was maintained that the ingredient as it relates to the details of the account and when it was operated/maintained were proved by Exhibit B and other evidence adduced by the prosecution.

With respect to the offence charged in Count 2, it was stated that the ingredients to be proved are that the Appellant directly/indirectly controlled some funds; and that the Appellant did so when he reasonably ought to have known that such funds formed part of the proceeds of an unlawful act. The case of FRN vs. ADAMU (2018) LPELR-46024 (CA) was relied upon. It was opined that the ingredients were proved, since the Appellant acknowledged the funds in his extra-judicial statement, Exhibit D6 (1-4) and also made withdrawals from the account. On the illegal origin of the funds, it was stated that the PW3 testified on the illegal activities and was not cross-examined, just as the PW1’s testimony and the Appellant’s extra-judicial statements gave details of the illegal origin of the funds in the account. Still in argument, it was contended that the entire circumstances of the case proved the Appellant’s guilty knowledge as the perpetrator of the unlawful act of corruption was the Appellant’s father; and the Appellant further stated in his extra-judicial statement that the business name under which the funds were laundered through the account had no farm and was not engaged in farming.

On the offence charged in Count 3, it was stated that the prosecution had to establish that the Appellant filled Assets Declaration Form; failed to make full declaration in the said Form of his assets and liabilities and that he knowingly failed to make a full declaration. It was asserted that the prosecution evidence established the ingredients of the offence and that proof of knowledge/intention is hardly by positive evidence but can be inferred from the surrounding circumstances. The case of ADEPOJU vs. THE STATE (2014) LPELR-23312 (CA) was referred to. It was maintained that the Appellant was informed of the rules guiding the filling of the Form, yet he failed to disclose his interest in some companies and properties.

​APPELLANT’S REPLY ON LAW
The Appellant submits that marginal notes to an enactment do not form part of the enactment or control the language used in the enactment. The cases of AKINTOKUN vs. LPDC (2014) LPELR-22941 (SC) at 129 and YABUGBE vs. COP (1992) LPELR-3505 (SC) at 17-18 were called in aid. It was therefore contended that the marginal note to Section 11 of the Money Laundering (Prohibition) Act could not have expanded the scope of the meaning of an anonymous account to include accounts in fictitious names, especially as the case for the prosecution was not on the operation of a fictitious account or that the account subject of the charge was in a fictitious name.

​It was further submitted that being a co-signatory to an account is distinct from the transfer or vesting of the ownership of the business name. It was posited that the offence created by Section 11 of the Money Laundering (Prohibition) Act is the opening or maintaining of an anonymous account and that the legal status of a business name or any corporate body is not a factor in deciding that a bank account is anonymous, since the law did not make any such provision. The cases of ROLAND vs. FRN (supra) at 32 and OMATSEYE vs. FRN (supra) at 10-11 were cited in support.

It was argued that the essential part of Count 2 was not that the funds formed part of the illegal activity of the Appellant’s father; but rather, proof beyond reasonable doubt that the Appellant knew it to be so. It was maintained that the testimony of the PW3, though unchallenged, did not establish the factual nexus between the alleged corruption of the Appellant’s father and the Appellant’s knowledge that the funds in the account were proceeds of an illegal act and that the Court would still evaluate the unchallenged evidence to see if it met the required standard of proof vide SARK POWER GENERATION NIG LTD vs. AKINWUNMI (2014) LPELR-23104 (CA) at 44.

​RESOLUTION OF ISSUE NUMBER ONE
Our adversarial criminal justice system is accusatorial and the prosecution has the onus of proving the commission of the crime charged. This is so on account of the provisions of Section 36 (5) of the 1999 Constitution, as amended, which provides that every person charged with a criminal offence shall be presumed innocent until he is proven guilty. The necessary corollary of this presumption of innocence is the cardinal principle of law which requires the prosecution to prove the commission of the crime by the person charged with a criminal offence. By Section 135 of the Evidence Act, 2011 the standard of proof in a criminal case is proof beyond reasonable doubt. There is nothing esoteric in the apothegm that in criminal trials the burden is on the Prosecution to prove the offences charged beyond reasonable doubt. Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote probability in his favour, which can be dismissed with the sentence: “of course it is possible, but not in the least probable”, then the case is proved beyond reasonable doubt. See MILLER vs. MINISTER OF PENSIONS (1947) 2 ALL E.R. 372, MICHAEL vs. THE STATE (2008) LPELR (1987) 1 at 24 and BAKARE vs. THE STATE (1987) 3 SC 1 or (1987) LPELR (714) 1 at 12-13.
Proof beyond reasonable doubt does not mean or import beyond any degree of certainty. The term strictly means that within the bounds of the evidence adduced before the Court, no Tribunal of justice would convict on it having regard to the nature of the evidence led in the case. It should be a proof that excludes all reasonable inference or assumption except that which it seeks to support. It must have clarity of proof that is readily consistent with the guilt of the accused person. The expression does not connote any ungainly and abstract construction or understanding. A priori, it is a concept founded on reason and rational and critical examination of a given set of facts and the law rather than a fanciful, whimsical or capricious and speculative doubt. See THE STATE vs. ONYEUKWU (2004) 14 NWLR (PT 893) 340 at 379-380, ONIANWA vs. THE STATE (2015) LPELR (24517) 1 at 40-41 and TAIYE vs. THE STATE (2015) LPELR (25783) 1 at 26-27. Proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. To captivate our attention in ascertaining whether the lower Court rightly held that the offences charged were proved beyond reasonable doubt are the set of facts established by the prosecution evidence, vis-à-vis the law under which the offences were charged.

Let me deal with the Appellant’s submission that the offence charged in Count 1 is not defined in any written law. The basis of the Appellant’s contention in this regard is that the Money Laundering (Prohibition) Act does not define what numbered or anonymous accounts mean. So, properly contextualised, the Appellant’s complaint is that the phrase “numbered or anonymous account” has not been defined. Now, Section 36 (12) of the 1999 Constitution provides as follows:
“Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a law of a State, any subsidiary legislation or instrument under the provisions of a law.”
The above Constitutional stipulation is that a person shall not be convicted of a criminal offence that is not defined and the penalty therefor prescribed in a written law. It is pertinent to state that the Appellant’s contention is not that the offence he was charged with in Count 1 is not provided for or defined in a written law; it is rather that some of the words employed in making the act an offence were not defined. This is definitely not what the Constitution proscribes in Section 36 (12) reproduced above. The constitutional prescription relates to a criminal offence that is not provided for under any written law: NYAME vs. FRN (supra). 

Section 11 (1) of the Money Laundering (Prohibition) Act, 2011 provides for the offence that the Appellant was charged with, while the penalty therefor is prescribed in Section 11 (4) of the same Act. I am consequently unable to agree with the Appellant’s submission that contrary to the constitutional provision, that the offence charged in Count 1 is not defined in any written law. The offence is duly provided for and what should be of interest is whether the lower Court rightly held that the offence was proved beyond reasonable doubt.

​Count 1 of the Amended Charge, reads as follows:
“That you FAISAL ABDULRASHEED MAINA (alias Alh Faisal Abdullahi Farms 2) between October, 2013 and June, 2019 within the jurisdiction of this Hon. Court did operate an anonymous account No: 1017558607 (Alh Faisal Abdullahi Farms 2) in United Bank for Africa (UBA), Maitama branch, Abuja by concealing your true identity and you thereby committed an offence contrary to Section 11(1) of the Money Laundering (Prohibition) Act, 2011 (as amended) and punishable under Section 11(4) of the same Act.”

Section 11 (1) of the Money Laundering (Prohibition) Act, 2011 under which the offence is charged provides as follows:
“The opening or maintaining of numbered or anonymous accounts by any person, Financial Institution or corporate body is prohibited.”

​It has not been confuted that the bank account subject of Count 1 of the Charge exists and that the Appellant is associated with the said bank account. The material ingredients on which the contest in this appeal hinges are whether the said account is an anonymous account and whether the evidence established that the account was operated/maintained by the Appellant as charged. Let me at this point state that an appellate Court is concerned with whether the decision of the lower Court is the correct decision and not whether the reasons given for the decision are correct. So, if the decision of the lower Court that the offences charged were proved beyond reasonable doubt is correct, the reasons given therefor will be of no moment: ISLAM vs. FRN (2018) LPELR (44529) 1 at 34-35, SALAWU vs. FRN (2019) LPELR (50060) 1 at 5 and NDAYAKO vs. DANTORO (2004) LPELR (1968) 1 at 32.

The Appellant has argued that the Respondent’s reliance on the marginal notes of the Money Laundering (Prohibition) Act is unavailing. While it is correct that marginal notes do not form part of an enactment vide AKINTOKUN vs. LPDC (supra); it is however hornbook law that it is permissible to consider the general purpose of a Section and the mischief at which it is aimed with the marginal note in mind. See YABUGBE vs. C.O.P. (1992) LPELR (3505) 1 at 17-18, UWAIFO vs. A-G BENDEL STATE (1982) LPELR (3445) 1 at 48-49 and OSUN STATE INDEPENDENT ELECTORAL COMMISSION vs. ACTION CONGRESS (2010) LPELR (2818) 1 at 55. In the circumstances, the marginal notes to Section 11 of the Money Laundering (Prohibition) Act will be useful and borne in mind in considering the mischief the provision is aimed at, and which as is clear from Count 1 of the Charge includes concealing the true identity of the person operating/maintaining an account.

​The Appellant has strongly argued that the ingredient of the account being an anonymous account was not proved, placing reliance on the definition of anonymous in the Black’s Law Dictionary, 10th Ed. and Websters Universal Dictionary and Thesaurus as, inter alia, meaning not name or identified, having no name, lacking individuality. It was maintained that since the account is in the name of “Alh Faisal Abdullahi Farms”, a business entity, that it could not be said to be an anonymous account. With due deference to learned counsel, this submission does not portray an appreciation of the offence that is created. The offence is in operating/maintaining the account in an anonymous manner; as stated in the Charge, concealing the true identity of the person who opened, operates/maintains the account. Based on the premise of the Appellant’s contention, there can never be an anonymous account since every account must have a name associated with it even if it be a fictitious name, pseudonym, nom de guerre or nom de plume. Therefore, the anonymity in the account and which has been prohibited and made an offence is operating/maintaining the account “anonymously” such that the identity of the actual person operating/maintaining the account remains concealed and is not evident from the name of the account. The evidence adduced by the prosecution established that the Appellant is not Alh. Faisal Abdullahi Farms, neither is he the proprietor of the business name. The evidence further disclosed that the Appellant is one of the signatories to the account and that he lodges money and withdraws money from the said account. The mere fact that the Appellant’s father is equally a signatory to the account does not dislodge the fact established by the evidence that the Appellant also operates and maintains the account.

It bears restating as held by Lord Denning in MILLER vs. MINISTER OF PENSIONS (supra) that the law would not admit fanciful possibilities to deflect the course of justice. The evidence adduced in respect of Count 1 is strong and such that it only leaves a remote possibility in favour of the Appellant which can be dismissed with the statement that it is possible but not in the least probable. The said Count 1 of the Charge has therefore been proved beyond reasonable doubt. See also BAKARE vs. THE STATE (1987) LPELR (714) 1 at 12-13, DAVID vs. FRN (2018) LPELR (43677) 1 at 19-21 and FOLORUNSHO vs. FRN (2017) LPELR (41972) 1 at 43-44.

The Appellant was charged in Count 2 with the following offence to wit:
“That you FAISAL ABDULRASHID MAINA (alias Alh Faisal Abdullahi Farms 2) between October, 2013 and June, 2019 within the jurisdiction of this Hon. Court, indirectly controlled an aggregate sum of N58,111,585.00 (Fifty Eight Million, One Hundred and Eleven Thousand, Five Hundred and Eighty-Five Naira only) paid through the United Bank for Africa (UBA) account of Alh. Faisal Abdullahi Farms II, when you reasonably ought to have known that the said funds formed part of the proceed of unlawful activity (to wit: corruption of one ABDULRASHEED ABDULLAHI MAINA who is facing a separate charge) and you thereby committed an offence contrary to Section 15(2)(d) of the Money Laundering (Prohibition) Act, 2011 (as amended) and punishable under Section 15 (3) & (4) of the same Act.”

Section 15 (2) (d) of the Money Laundering (Prohibition) Act, 2011 under which the offence was charged stipulates as follows:
“15. (2) Any person or body corporate, in or outside Nigeria, who directly or indirectly –
(d) acquires, uses, retains or takes possession or control of; any fund or property knowingly or reasonably ought to have known that such fund or property is, or forms part of the proceeds of an unlawful act; commits an offence of money laundering under this Act.”
From the stipulations of the law, for the prosecution to succeed in proving the offence charged in Count 2, it must prove that the Appellant indirectly controlled the funds and that the Appellant knew or reasonably ought to know that the funds forms part of the proceeds of an unlawful act. See SHEKARAU vs. FRN (2020) LPELR (52029) 1 at 36-37, DOKPESI vs. FRN (2021) LPELR (55005) 1 at 22 and DAAR INVESTMENT AND HOLDING CO. LTD vs. FRN (2021) LPELR (55003) 1 at 22-23.

​The evidence adduced by the prosecution established that the Appellant is a signatory to the account. The evidence further established that as such signatory, the Appellant had made withdrawals from the account. The fact that the Appellant’s father was also a signatory to the account does not change the fact that the Appellant as a signatory also had control of and access to the funds in the account. It has to be remembered that the particulars of the offence charged are that the Appellant “indirectly controlled” the funds. Accordingly, the testimony of the PW1 which the Appellant latches on to, to the effect that the Appellant minimally operated the account does not derogate from the indirect control of the funds having been proved; as such minimal operation is indeed indirect control of the funds. The said ingredient was therefore proved.

​On the ingredient of knowing or reasonably ought to know that the funds form part of the proceeds of an unlawful act, the evidence relied upon by the prosecution included the extra-judicial statement of the Appellant which was admitted in Evidence as Exhibit D6 (1). The account in which the funds indirectly controlled by the Appellant were lodged is said to be the account of a business that is engaged in farming – Alh. Faisal Abdullahi Farms 2. In Exhibit D6 (1) the Appellant stated:
“The company Faisal Farms has a corporate account at United Bank of Africa. The company Faisal Farms has two signatories who are my father and I and Faisal Farms has two accounts which are Faisal Farms 1 and Faisal Farms 2. I am a signatory to both corporate accounts for the company Faisal Farms. Faisal Farms does not have a farm. I have made withdrawals and deposits into the account and my parents have also funded the account as the account is merely such as a personal account as it does not have a farm”.

From the above pericope from Exhibit D6 (1), Alh. Faisal Abdullahi Farms has no farm and yet the whopping sum of N58.1 million which was indirectly controlled by the Appellant had passed through the account. It seems to me that it does not require being a gnostic or sagacious for the Appellant to discern that the funds were proceeds of an unlawful act.

​What is more, the testimony of the PW1 is that the funds lodged into the account were cash lodgements but that she never made a report to the relevant authorities because of her relationship with the Appellant’s father, who is her brother-in-law. The lower Court rightly held that the Appellant had knowledge or ought to know that the funds were proceeds of unlawful act, when it stated as follows at pages 891-893 of Volume 2 of the Records of Appeal:
“As regard intention of committing the crime that is the mens rea, PW3 testified about the illegal activities of the Defendant’s father and the proceeds thereof. Interestingly, PW3 was not cross-examined on this by the defence. PW1 also gave evidence touching on the illegal activities of the Defendant’s father and what he did with the proceeds thereof. The extra-judicial statement of the Defendant gave details of the origin of the funds into the account which in my view is tainted with illegality… He admitted that there was no farm in existence as at the time the account was opened. That it was operated as personal account. I have no doubt in my mind that the prosecution have proved the sums of monies mentioned in count II formed part of the proceeds of unlawful act of corruption of the Defendant’s father and that being a signatory to the account ought to know that it was a proceed from unlawful act to wit corruption.
The mental element of the Defendant that he ought to have known that funds in the account forms part of the proceed of unlawful act has been proved by the prosecution. That is the guilty knowledge of the Defendant i.e. men [sic] rea of the offence. In this case, the father of the Defendant did the laundering of the funds paid into Alhaji Faisal Farm account. The Defendant is the son of the person that laundered the funds believed to be above his legitimate earning. The Defendant also acknowledged that the business name through which account the funds were laundered was that of his father. The Defendant also in his extra-judicial statement acknowledged that the business name called Alhaji Faisal Abdullahi Farms had no farm and was not engaged in farming and that it was their personal account, but the Defendant with his father withdrew funds from the same account that was laundered by the Defendant’s father… Therefore there is guilty knowledge here.
I therefore agree with Learned Counsel for the prosecution that the Defendant reasonably ought to have known that the funds in the account are proceeds of or forms part of the proceeds of unlawful act of his father. I therefore hold the view that the prosecution has proved the essential ingredients of the offence in Count II.”

The above finding cannot be faulted. The prosecution proved the essential ingredients of Count 2 of the Charge beyond reasonable doubt.

Count 3 of the Charge is for the following offence:
“That you FAISAL ABDULRASHID MAINA on about 3rd October, 2019 at Abuja within the jurisdiction of this Honourable Court knowingly failed to make full disclosure of your assets and liabilities in the Declaration of Assets Form dated 3rd October, 2019 which you filled at the Economic and Financial Crimes Commission (EFCC) office at No. 5 Fomella Street, Wuse II – Abuja and you thereby committed an offence contrary to Section 27(3)(a) of the Economic and Financial Crimes Commission (Establishment) Act, 2004 and punishable under Section 27(3)(c) of same Act.”

​Section 27 (3) (a) of the Economic and Financial Crimes Commission (Establishment) Act, 2004 under which the charge was preferred provides that:
“27 (3) Any person who –
(a) knowingly fails to make full disclosure of his assets and liabilities….”
commits an offence.”
​The essential ingredients which the prosecution has to prove in this regard are that the Appellant made a declaration of his assets, that the declaration he made was not a full disclosure of his assets and that he knowingly failed to make a full disclosure. 

On the first element, the prosecution tendered Exhibit D5A, being the declaration of assets form filled by the Appellant. On the second and third ingredients, the incorporation documents of the Companies which the Appellant did not disclose his interest in were admitted in evidence as Exhibits D8(2), D8(3) and D8(5). See page 691 of Volume 2 of the Records. The Appellant denied any interest in the said Companies or having the knowledge of any such interest. In the case of Exhibit D8 (2), the Appellant contends that he was “too young – about 10 years old” when the company was incorporated and therefore “could not have owned shares knowingly.” I am not enthused by this contention. Among the assets which the Appellant declared in Exhibit D5A is a five-bedroom semi-detached duplex house situate at Kado Estate, Abuja which he stated was acquired in 2013 (see page 192 of Volume 2 of the Records). The Appellant was equally too young – about 14 years old – when the house was acquired; yet he declared the same. The contention that he was too young to knowingly own the shares in Exhibit D8(2), does not cast any doubt on the prosecution having established his interest in the Company and the fact that he failed to disclose the same in Exhibit D5A.

​With regard to the Appellant’s interest in the Companies, Exhibits D8 (3) and D8 (5) which he did not disclose, the Appellant’s contention is that he was in school outside Nigeria when both Companies were incorporated and he was not aware of their incorporation, much less owning shares in them. Once again, I fail to see how this contention casts any doubt on what the prosecution evidence established. Among the assets declared by the Appellant in Exhibit D5A is a 1998 Land Rover Range Rover Car said to have been acquired in 2019, when the Appellant was equally in school outside the country. Indeed, the Appellant in his extra-judicial statement, Exhibit D6(1) stated that the said vehicle was armoured and bulletproof. I therefore cannot fathom how in the circumstances he knew that a car could be acquired while he was in school outside the country, and he contends that he did not know about the shares in the Companies because he was in school outside the country. It is with respect, chop logic!

​The further contention of the Appellant is that the ipse dixit of the PW3 that investigations revealed that the various names in which the shares were held namely – Faisal Abdullahi, Faisal Rasheed Abdullahi and Faisal Abdulrasheed are the same person as the Appellant, whose name is Faisal Abdulrasheed Maina is not proof. Now, it is in evidence that the name of the Appellant’s father is Abdulrasheed Maina and that the name of Appellant’s grandfather is Abdullahi. Indeed, in Exhibit D5A, the Appellant stated his father’s surname as MAINA ABDULLAHI (see page 187 of Volume 1 of the Records). There is further in evidence, as Exhibit D8 (7), affidavit of facts filed by the Appellant at the lower Court where the Appellant’s name is stated as FAISAL ABDULLAHI MAINA (see pages 791-793 of Volume 2 of the Records). The assertion that the variants of the names on the Company documents all belong to the Appellant is the ipse dixit of the PW3 is therefore not correct. The further contention of the Appellant that he has nothing to do with the Sokoto addresses stated as his address in the company documents will seem not to be borne out by the Declaration of Asset Form, Exhibit D5A, where the Appellant showed his link with Sokoto by declaring the personal bank accounts he has at United Bank for Africa (UBA) Sokoto Branch and Unity Bank Sokoto Branch. See page 194 of Volume 1 of the Records of Appeal.

​The prosecution evidence established the ingredients of the offence in Count 3 of the Charge and the lower Court correctly found and held as such when it stated as follows at pages 894-895 of Volume 2 of the Records:
“In this case, the Defendant filled the Asset Declaration Form, failed to make full declaration in the said form of his assets and liabilities. That he did it knowingly. Exhibit D5A is the Asset Declaration Form filled by the Defendant. Exhibit D5A does not show the existence of the Defendant’s interest in exhibits D8(2), D8(3), D8(5). From exhibits D8(2), D8(3), D8(5), it is clear that the Defendant is a shareholder and has interest in the following companies;
(1) NORTHRIDGE PROPERTIES INTERNATIONAL (NIG) LIMITED RC NO. 1444870
(2) DREW INVESTMENT & CONSTRUCTION COMPANY LTD RC NO. 839065
(3) MAMBILA TOURISM COMPANY LTD RC NO. 1579632
Though it is difficult to prove knowledge/intention through positive evidence but it can be inferred from surrounding circumstances…
In this case, before the Defendant filled the Asset Declaration Form on 3/10/2020 as clearly shown on exhibit D5A which was signed and dated by the Defendant, he was informed of the rules guiding the filling of the form by PW3 yet the Defendant failed to mention these companies which he had interest. I think the prosecution has proved the essential ingredients of the offence stated in count III.”
There is no reason to disturb this finding.

​From the totality of the foregoing, it is ineluctable that this issue number one must be resolved against the Appellant. The evidence adduced by the prosecution proved the three counts of the Charge beyond reasonable doubt and the lower Court was correct to convict on the evidence.

ISSUE NUMBER TWO
Whether the trial Court was right to sentence the Appellant in absentia and impose the maximum terms of imprisonment.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
It is the Appellant’s contention that the lower Court was wrong by sentencing him in absentia especially as Section 352 (5) of the Administration of Criminal Justice Act, 2015 binds the Court not to impose sentence unless and until the Appellant is brought to Court. It was stated that the lower Court ordered the trial of the Appellant in absentia pursuant to Section 352 (4) of the Administration of Criminal Justice Act, 2015 but that the provisions of Section 352 (4) and (5) of the Administration of Criminal Justice Act are to be read together and not disjunctively. The cases of YABUGBE vs. COP (supra) at 28-29 and 39-40 and NIG. ARMY vs. AMINUN KANO (2010) LPELR-2013 (SC) at 35 were referred to. It was opined that while trial in absentia can be done pursuant to Section 352 (4), but that by Section 352 (5) it is limited to proceedings up to conviction as it does not authorise imposing sentence in absentia.

It was asserted that whenever the person is arrested or surrenders to the Court, any other Judge of the Court can convict [sic]. It was maintained that there is no compulsion on the trial Court by Section 294 (1) of the 1999 Constitution, as amended, to sentence the convicted person. It was posited that the lower Court ought to have afforded the parties a hearing before holding that Section 352 (5) of the Administration of Criminal Justice Act was in conflict with Section 294 (1) of the Constitution, being an issue that the lower Court raised suo motu. The cases of SAP LTD vs. MIN PETROLEUM RESOURCES (2018) 6 NWLR (PT 1616) 391 at 413-414 and 417-418 and WAGBATSOMA vs. FRN (2018) 8 NWLR (PT 1621) 199 were relied upon.

​The Appellant’s submission on his issue number five is that the lower Court exceeded its jurisdiction by sentencing the Appellant to the maximum terms of imprisonment for the offences charged. Relying on the provisions of Section 416 (2) (d) of the Administration of Criminal Justice Act, it was contended that the lower Court had no jurisdiction to impose the maximum punishment on the Appellant who was a first offender. It was stated that where a law specifies how a thing should be done, failure to comply with the same amounts to a miscarriage of justice vide SARAKI vs. FRN (supra) at 469.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
It is the Respondent’s contention that by Section 294 (1) of the 1999 Constitution, there is no room for deferment of any part of a judgment. It was stated that a trial Court has the discretion to impose a term of imprisonment within the parameters set by the penal legislation and that the lower Court acted within the confines of the law by pronouncing a sentence and maximum terms of imprisonment. It was asserted that there was nothing illegal in sentencing a convict to the maximum sentence provided by the penal legislation.

The Respondent conclusively submitted that the Appellant had failed to show that the decision of the lower Court is wrong or that the lower Court erroneously appraised the facts and came to an erroneous conclusion and therefore an appellate Court will not interfere. The cases of RAPHAEL vs. EZI (2015) 12 NWLR (PT 1472) 39 at 61 and MAFA vs. THE STATE (2013) 3 NWLR (PT 1342) 602 at 620 were cited in support.

APPELLANT’S REPLY ON LAW
The Appellant submits in the Reply Brief that he had demonstrated that the lower Court made erroneous findings which led to a perverse verdict and occasioned a miscarriage of justice, consequent upon which the decision should be set aside. The case of UGBOJI vs. THE STATE (supra) at 379 was called in aid.

RESOLUTION OF ISSUE NUMBER TWO
At the outset I stated that in the course of the proceedings the Appellant stopped attending Court, whereupon the lower Court ordered that the trial of the Appellant continue in his absence. Section 352 (4) and (5) of the Administration of Criminal Justice Act, 2015 provide as follows:
“(4) Where the Court, in exercise of its discretion, has granted bail to the defendant and the defendant, in disregard for the Court orders, fails to surrender to the order of Court or fails to attend Court without reasonable explanation, the Court shall continue with the trial in his absence and convict him unless the Court sees reasons otherwise, provided that proceedings in the absence of the defendant shall take place after two adjournments or as the Court may deem fit.”
“(5) The Court shall impose a sentence only when the defendant is arrested or surrenders to the custody of the Court.”
Without a doubt, Section 352 (5) of the Administration of Criminal Justice Act, 2015 expressly stipulates that a Court shall impose a sentence only when the defendant is present. The lower Court was therefore in error when it imposed sentence on the Appellant in absentia. But is this error by the lower Court such that the decision of the lower Court should be set aside?

It is abecedarian law that it is not every error or mistake on the part of a Court that will vitiate the judgment of the Court. It is only where the error or mistake is so fundamental as to occasion a gross miscarriage of justice that it will vitiate the judgment. See YARO vs. THE STATE (1972) NSCC 160 at 165, AREMU vs. THE STATE (1991) LPELR (545) 1 at 23, ALI vs. THE STATE (2015) LPELR (24711) 1 at 24-25, THE STATE vs. USMAN (2021) LPELR (55202) 1 at 15-16, KAYODE vs. THE STATE (2016) LPELR (40028) 1 at 36 and BERENDE vs. FRN (2021) LPELR (54993) 1 at 15. In the words of Augie, JSC in NWODO vs. THE STATE ​(2018) LPELR (46335) 1 at 19:
“It is well-settled that the judgment of a lower Court will not be reversed on the basis of an error, which is minor or immaterial, and has no direct impact on the reasoning leading to a decision. It is only when the error is substantial, in that it has occasioned miscarriage of justice that this Court will be bound to interfere.”

The pertinent question is whether the sentence imposed by the lower Court in the absence of the Appellant occasioned a miscarriage of justice? Does that error have any direct impact on the reasoning that led to the decision of the lower Court? Definitely not!

​Miscarriage of justice has been held to be a failure of justice. A miscarriage of justice occurs where there are grave or serious errors in the proceedings as to make the proceedings fundamentally flawed. It means the failure of the Court to do justice. For there to be a miscarriage of justice, the error or irregularity must go to the root of the case. See DAMINA vs. THE STATE (1995) LPELR (918) 1 at 44-45, MMAMMAN vs. FRN (2013) LPELR (20082) 1 at 12, NWANKWOALA vs. FRN (2018) LPELR (43891) 1 at 20 and GOSHELENG vs. THE STATE (2021) LPELR (56466) 1 at 14-15. In the diacritical circumstances of this matter, the sentence imposed in the absence of the Appellant did not occasion a miscarriage of justice.

I have not lost sight of the Appellant’s submission that the lower Court was in error when it, suo motu, raised and held that Section 352 (5) of the Administration of Criminal Justice Act, 2015 was in conflict with Section 294 (1) of the 1999 Constitution. While it is correct that a Court is not to raise an issue suo motu and decide the same without hearing the parties: OKOYE vs. C.O.P. (2015) LPELR (24675) 1 at 40, PETERS vs. THE STATE (1992) LPELR (2914) 1 at 17 and THE STATE vs. KAPINE (2019) LPELR (49511) 1 at 22-26; however the issue which the lower Court raised in this matter does not form part of the judgment of the lower Court, which judgment is at pages 878-898 of Volume 2 of the Records. The lower Court raised the issue in the proceedings on the day judgment was delivered as the reason why it proceeded to impose sentence in the absence of the Appellant. See pages 876-877 of Volume 2 of the Records. Let me iterate that an appellate Court is concerned with whether the decision of the lower Court is correct and not whether the reasons for the decision are correct: ISLAM vs. FRN (supra), SALAWU vs. FRN (supra) and NDAYAKO vs. DANTORO (supra).

In so far as I have held in the course of this judgment that the error by the lower Court by imposing sentence in the absence of the Appellant did not occasion a miscarriage of justice, it becomes immaterial that the reason given by the lower Court for so doing is predicated on the issue it raised suo motu, and without hearing the parties, when it held that Section 352 (5) of the Administration of Criminal Justice Act is in conflict with Section 294 (1) of the 1999 Constitution. It is therefore not fatal to the decision of the lower Court.

​The Appellant has made a foofaraw on the maximum term of imprisonment imposed by the lower Court, contending that it is contrary to the provision of Section 416 (2) (d) of the Administration of Criminal Justice Act, which stipulates that a trial Court shall not pass the maximum sentence on a first offender. It is rudimentary law that a Court has a wide discretion in the imposition of sentence, but that discretion has to be exercised judiciously and judicially. Judicial discretion is a vital tool in the administration of justice. It is a sacred power which inures to a Judge. In matters of judicial discretion, since the circumstances of no two cases are the same, rules and principles are not laid down in a manner that would fetter the discretion of the Court. Where as in this case, a mandatory sentence has not been provided by law, the lower Court has the discretion on the term of imprisonment to impose, save however that by the provisions of Section 416 (2) (d) of the Administration of Criminal Justice Act, the maximum term of imprisonment is not to be imposed where the defendant is a first offender. See generally OKECHUKWU vs. THE STATE (1993) 9 NWLR (PT 315) 78 at 94-95, YAKUBU vs. FRN (2022) LPELR (57749) 1 at 31-32 and IDAM vs. FRN (2020) LPELR (49564) 1 at 9-10.
In exercising its discretion, the lower Court imposed the maximum terms of imprisonment. The lower Court did not factor in that the Appellant was a first offender. Legal discretion or legalis discretio requires that a Court administers justice according to the prescribed rules of law: EBE vs. COP (2008) LPELR (984) 1 at 7. An appellate Court will not interfere with a sentence imposed at nisi prius, unless it is manifestly excessive in the circumstances or wrong in principle. In ADEYEYE vs. THE STATE (1968) 1 ALL NLR 239 at 241, Ademola, CJN stated:
“It is only when a sentence appears to err in the principle that this Court will alter it. If a sentence is excessive or inadequate to such an extent as to satisfy this Court that when it was passed there was failure to apply the right principles, then this Court will intervene.”
See also OMOKUWAJO vs. FRN (2013) LPELR (20184) 1 at 32 and ABIODUN vs. FRN (2018) LPELR (43838) 1 at 24-26.
Equally in SUMAILA vs. THE STATE (2012) LPELR (19724) 1 (CA), this Court (per Ejembi Eko, JCA as he then was) held: “The trial Judge in matters of sentence, has discretion. That cannot be denied. And it is also settled that an appellate Court will not readily interfere with the sentence imposed by a trial Judge unless it is manifestly excessive or wrong in principle. See STEPHEN v THE STATE (CA/C/117/2007 of the 10th December 2008); T.S.A INDUSTRIES LTD v. KEMA INVESTMENT LTD (2006) 1 SC (pt. 3) 9 (2006) 2 NWLR [pt. 964] 1.”
The lower Court not having taken cognisance of the provisions of Section 416 (2) (d) of the Administration of Criminal Justice Act in imposing sentence depicts that the lower Court failed to apply the right principles as a result of which this Court can intervene. The sentences imposed by the lower Court will therefore be reduced since the Appellant is a first offender.

​Section 311 of the Administration of Criminal Justice Act, 2015 deals with sentence and sentencing hearing. Subsection (2) thereof provides for the factors to be taken into account by a Court in pronouncing sentence, while subsection (3) stipulates that a Court, after conviction, shall take all necessary aggravating and mitigating evidence or information in respect of the convict that may guide it in deciding the nature and extent of sentence to pass on the convict in each particular case. The aim of sentencing is retribution, deterrence, reformation and protection of society. The retributive aspect is designed to express public revulsion from the offence and to punish the offender for his wrong conduct, while deterrence is to discourage the convict from further offences as well as potential offenders from committing offences. Reformation aims on reintegrating the offender into society for honest living. Given that the Appellant is a first offender, at all material times a student; and still in the prime of his youth, the sentence ought to be such that the Appellant should still have the opportunity of being useful to himself and the society after serving his term of imprisonment. See YAKUBU vs. FRN (2022) LPELR (57749) 1 at 38, UKOH vs. THE STATE (2022) LPELR (56711) 1 at 13, ELIZABETH vs. FRN (2021) LPELR (54632) 1 at 8-9 and IBRAHIM vs. THE STATE (2018) LPELR (45967) 1 at 25.
​In considering the sentence to impose, due regard must be had to the need to afford the Appellant, as a first offender, at all material times a student who is still in the prime of his youth; the opportunity of being useful to himself and the society after serving his term of imprisonment. 

Accordingly, in respect of Counts 1 and 3, the term of five years imprisonment imposed by the lower Court is hereby reduced to three years imprisonment; while in respect of Count 2 of the Charge, the fourteen years imprisonment imposed by the lower Court is hereby reduced to seven years imprisonment. To the extent that the sentence imposed has been reduced, the Appellant succeeds in part in issue number two.

The evaluation of evidence and ascription of probative value thereto is in the province of the trial Court, which had the opportunity of hearing the testimony of the witnesses and observing their demeanour and an appellate Court would not ordinarily interfere with the findings of a trial Court in this regard unless the same is shown to be perverse: see ONOGWU vs. THE STATE (1995) 6 NWLR (PT 401) 276 at 552. Put differently, an appellate Court will not ordinarily interfere with the findings of facts made by a trial Court unless it is shown that such findings are perverse or are not the result of proper evaluation of the evidence. See SANYAOLU vs. THE STATE (1976) 5 SC 37, RABIU vs. THE STATE (1980) 8-11 SC 130, ADELUMOLA vs. THE STATE (1988) 1 NWLR (PT 73) 683; SUGH vs. THE STATE (1988) 2 NWLR (PT 77) 475 and THE STATE vs. NNOLIM (1994) 5 NWLR (PT 345) 394. The findings of facts and conclusions reached on the evidence by the lower Court are definitely not perverse. The Appellant’s failure to show that the findings are perverse signifies that the evidence was properly evaluated by the lower Court. See SANDE vs. THE STATE (1982) 4 SC 41, THE STATE vs. AIBANGBEE (1988) 3 NWLR (PT 84) 548 and DIBIE vs. THE STATE (2007) All FWLR (PT 353) 83 at 102 and 110.

In conclusion, the lower Court rightly held that the offences charged were proved beyond reasonable doubt. The Appellant having been justifiably convicted on the evidence, there can be no reason to set aside the conviction on the ground that the Appellant was sentenced in absentia: OJEH vs. FRN (2022) LPELR (58493) 1 at 40-45; more so, when no miscarriage of justice was occasioned. In a summation, the appeal succeeds in part, to the extent that the terms of imprisonment have been reduced as set out in this judgment. For the avoidance of doubt, the decision of the lower Court is affirmed in all other respects.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I had a preview of the lead Judgment delivered by my learned brother, Ogakwu, JCA, and I agree with him that this appeal succeeds in part.

​In this appeal, it is clear from the well established facts set out in the lead judgment that there is enough evidence to support the Appellant’s conviction on all the counts of the charge against which he stood trial. In my view, the Appellant had failed to provide this Court with any good or cogent reasons to necessitate any interference with the findings of the lower Court in most of their material respects.

​It must be noted that the trial of the Appellant was largely held in his absence, due to his disrespectful conduct and disdain for the lower Court and its processes. I feel that it is not right for the Appellant, after having sought for and was granted bail by the lower Court to willfully refuse to appear in Court to take his trial. The lower Court was therefore, in the circumstance, fully entitled to avail itself of the power conferred on it under Section 352 (4) of the Administration of Criminal Justice Act (ACJA) to conduct the trial of the Appellant in absentia. A Criminal trial begins with the arraignment of an accused person and ends with conviction and sentence or discharge and acquittal. Every part of the trial process must be conducted with due regards to due process, the constitutional imperative of the right to fair hearing; integrity, observance of all procedural safeguards, all culminating and aggregating to a fair trial. While Section 352(4) allows for a trial in absentia, but upon conviction, Section 352(5) provides that the sentencing of a convict can only be made when he is physically present in Court. The Appellant herein was sentenced in his absence. The provisions in Section 352(4) and 352(5) lack mutuality. Because how can a Court handle a situation when it holds nearly or all of the trial of an accused person in absentia and then upon conviction wait for the accused person to physically be present to be sentenced, more particularly, as in the instant appeal, he fully knew that the consequence of a conviction is a mandatory term of imprisonment. The pronouncement of a sentence by a trial Court, after conviction, ends the trial of a criminal matter and thereby rendering the Court functus officio. Judgment and sentence must be pronounced within 90 days after the final addresses of the parties to a matter by virtue of Section 294 of the 1999 Constitution as amended. Should a Court wait ad infinitum for an accused person to be physically present before it for it to oblige the provisions of Section 352(5) ACJA (Supra) I think not.

It is a cardinal principle in adjudication that every case must be decided upon its peculiar facts and circumstances. I agree with my learned brother Ogakwu, JCA in the lead judgment that though the lower Court in the instant matter was in error in sentencing the Appellant in his absence, that error of the lower Court should not lead to its entire decision being set aside, because in my considered view the failure of the trial Court to fully comply with Section 352(5), in the circumstances does not amount to a serious miscarriage of justice. 

After finding the Appellant guilty of all the counts charged, the learned trial Judge at page 895 of vol. 2 of the printed record of appeal considered that because the Appellant was not physically present in Court no allocutus could be made by counsel on his behalf. Because of the recent decision of the Supreme Court in NWEKE CHIBUEZE FRANCIS VS. FEDERAL REPUBLIC OF NIGERIA (2021) 5 NWLR (PT. 1769) 398 AT 411 F and 412 B – C the learned Judge of the lower Court was perfectly right to disallow counsel Mr. Anayo Adibe who appeared for the Defendant/Appellant to make any allocutus as it was previously customary for counsel to proceed to do an allocutus on behalf of convicted accused persons.

At pages 896 to 897 of the record of appeal, the lower Court proceeded to pronounce its sentence on the Appellant. Generally, the law allows a trial Court upon the conviction of an accused person to pronounce on him a sentence of a term of imprisonment confining him to a period of months or years in a correctional facility. The imprisonment may be pronounced to be with or without hard labour. It is deemed to be with hard labour even in the absence of any specific order. It is within the discretion of a trial Court, when imposing a term of imprisonment to tamper justice with mercy. In the case of TANKO V. STATE (2009) 4 NWLR (PT. 1131) 430, the Supreme Court decided that
“Where the sentence prescribed often conviction in a criminal charge is a term of years of imprisonment, then some extenuating factors such as the age of the convict, whether he is a first offender e.t.c., can be taken into consideration by the trial Judge in passing the sentence on the convict. Indeed, the trial Judge, CA-ABJ.CR.1044-2021 contribution by Gumel, JCA in my humble view, has the discretion to employ these factors to reduce the years of sentence.”
The decision of the Supreme Court in TANKO V. STATE (Supra) even without saying so or pretending to say so appears to have captured the imperatives under Sections 401(2) and 416(2) of the ACJA which outline some of the mitigating factors a Court must take into account before pronouncing sentence on a convicted accused person. 

With respect to the facts and circumstances in this appeal, the learned trial Judge appeared to have totally overlooked the first Offender status of the Appellant and his relative young age. The negative influence his father exerted on him and seeming poor upbringing which cumulatively led him to criminality. In my view, these factors are necessary imperatives to be considered when imposing sentence on the Appellant. I therefore agree with learned counsel to the Appellant that a sentence of 14 years imprisonment on the Appellant is excessive in the circumstance. I agree with my learned brother, Ogakwu, JCA, in the lead judgment that a sentence of 7 years is more appropriate to fit the crime for which the Appellant was found guilty under Section 15(3) and (4) of the Money Laundering Act, 2011, as amended.
For the foregoing reasons and the more elaborate ones set out in the lead judgment, I too allow this appeal in part.

ADEMOLA SAMUEL BOLA, J.C.A.: I have read through the draft of the judgment delivered by my Brother, UGOCHUKWU ANTHONY OGAKWU, JCA. I am in agreement with the reasoning and conclusions lucidly stated and well articulated in the decision. I abide by the content of the judgment and adopt same as mine.

​On the contention of the Appellant’s counsel that the trial Court should not have imposed a maximum sentence on the Appellant; it is settled law that sentencing is a matter within the discretion of the trial Court, provided the discretion is exercised judicially and judiciously within the law. An appellate Court will not interfere with the exercise of discretion by the lower Court unless the sentence imposed is manifestly excessive in the circumstance or wrong in principle. Thus, where a sentence imposed by the lower Court is in accordance with the laws, an appellate Court will be estopped from interfering with such sentence. See DAVID VS. COP PLATEAU STATE COMMAND (2018) LPELR-44911 (SC), ABIODUN VS. FRN (2018) LPELR-43838 (SC) and ONAH VS. FRN(2017) LPELR-43535 (CA).
In a situation where the law provides for a maximum and minimum sentence upon conviction the trial Judge is required to exercise his discretion judicially and judiciously —SUMAIL VS. THE STATE (2012) LPELR-19724 (CA). The fact that the Appellant was a first offender should be one of the reasons taken into consideration in imposing a lower sentence on him. See EROMOSELE VS. FRN (2018) LPELR- 43851 (SC).
Against the backdrop that the Appellant is a first offender and by reasons of the provisions of Section 416(2)(d) of the Administration of the Criminal Justice Act which stipulates that a trial Court shall not pass the maximum sentence on a first offender, the lower Court should have exercised its discretion in favour of not imposing the maximum punishment or sentence on the Appellant. The maximum sentence is not a mandatory one. Whereas, in a mandatory sentence, the lower Court has no discretion to tinker with or reduce the sentence to be imposed. ​The lower Court should have considered the Appellant being a first offender before imposing sentence on him.

​It is against this background that I concur with the decision of my Learned Brother reducing the terms of imprisonment imposed by the trial Court on the Appellant in respect of counts 1, 2 and 3 of the charge, the trial Court having failed to apply the right principles and law in imposing the sentences.

Appearances:

Edwin Inegedu, Esq. with him, Ms. Evelyn Dele, & Ms. Ene Attah. For Appellant(s)

Faruk Abdullah, Esq. with him, Ndeh Godspower, Esq. For Respondent(s)