MOMOH v. FRN
(2022)LCN/17129(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Wednesday, April 13, 2022
CA/L/727/2021
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Muhammad Ibrahim Sirajo Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
FRANCIS MOMOH APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
THE PRESUMPTION OF INNOCENCE OF AN ACCUSED PERSON UNTIL PROVEN GUILTY
It is merely restating the obvious that our adversary criminal justice system is accusatorial in nature and substance, and every person charged with a criminal offence is presumed innocent until he is proved guilty. See Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). A necessary corollary of the presumption of innocence is that in a criminal trial such as the present, the burden is always on the prosecution to establish the guilt of the accused person beyond reasonable doubt. Quite unlike civil proceedings, this burden on the prosecution is static in a manner akin to the fabled constancy of the ‘Northern Star’ and never shifts to the accused. It is if, and only if, the prosecution succeeds in proving the commission of a crime beyond reasonable doubt that the burden shifts to the accused to establish that reasonable doubt exists. See Ss. 135 and 137 of the Evidence Act, 2011. The Prosecution has the onus of proving all the material ingredients of the offence(s) charged beyond reasonable doubt. See STATE v SADU [2001] 33 WRN 21 at 40. Where the prosecution fails so to do, the charge is not made out and the Court is bound to record a verdict discharging and acquitting the accused. See MAJEKODUNMI v THE NIGERIAN ARMY [2002] 31 WRN 138 at 147. Also, if on the totality of the evidence adduced, the Court were left in a state of doubt or uncertainty, the prosecution would have failed to discharge the onus of proof cast upon it by law and the accused would be entitled to an acquittal. See UKPE v STATE [2001] 18 WRN 84 at 105. However, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt, but such proof as would reasonably and/or irresistibly lead to the inference that the accused committed the offence. See AKINYEMI v STATE [1999] 6 NWLR (PT 607) 449, ONI v STATE [2003] 31 WRN 104 at 122 and MILLER v MINISTER OF PENSION (1947) 2 ALL ER 372 at 373. PER AFFEN, J.C.A.
FACTOR THE TRIAL COURT WILL CONSIDER IN A PLEA OF NO-CASE TO ANSWER AT THE CLOSE OF THE PROSECUTION’S CASE
It is well settled that in considering a plea of no-case-to-answer at the close of the prosecution’s case, the Court is not required to enquire into the guilt or otherwise of the accused person per se by undertaking a comprehensive evaluation of evidence adduced thus far. Rather, the Court is preoccupied with ascertaining whether a prima facie case was made out to warrant calling upon the accused person to enter upon his defence. The decision should depend not so much on whether the adjudicating tribunal would at this stage convict or acquit the accused, but whether the evidence adduced is such that a reasonable Tribunal could convict on it. See ATANO v ATTORNEY-GENERAL BENDEL [1988] 2 NWLR (PT. 75) 201. In different words, what the trial Court seeks to ascertain at this stage is whether on the face of the evidence adduced thus far by the prosecution upon whom the non-shifting burden of proof lies, there is a ground for proceeding with the trial in that there is something worth looking at. Generally, there is ground for proceeding where the evidence before the Court is such that if uncontradicted and if believed will be sufficient to prove the case against the accused person. See DURU v NWOSU [1989] 1 NWLR (PT. 113) 24 –per Nnamani, JSC FIDELIS UBANATU v C. O. P. [2000] 2 NWLR (PT. 643) 115 and IKUFORIJI v F. R. N. [2018] LPELR-43884(SC) at 20-21. PER AFFEN, J.C.A.
FACTORS THE COURT WILL CONSIDER TO DETERMINE WHETHER THERE IS A PRIMA FACIE CASE AGAINST A DEFENDANT
In considering whether or not there is prima facie case against a defendant, the trial Court is bound to confine itself severely to the evidence adduced in Court [see MOHAMMED v STATE [2007] 7 NWLR (PT. 1032) 152 (SC)], and the case of DABOH & ANOR v. STATE (1977) 5 SC 197 at 209 –per Udo-Udoma, JSC donates the proposition that the case ought to proceed for the accused to explain his own side once there is evidence however slight linking him with the offence charged. At pp. 1754-755 in Volume III of the records, the lower ruled thus:
“I have gone through all the Count contained in the Charge against the Defendants in this case and I am satisfy (sic) that the Prosecution has not been able to prove elements of the offences ‘charged against the 1st Defendant to enable this Court call on him to enter his defence, I hereby discharge the 1st Defendant in this case. While, with regards to the 2nd, 3rd and 4th Defendants, I am satisfy (sic) that prima facie case has been established against them that will require them to enter their defence. This is the ruling of the Court.” PER AFFEN, J.C.A.
PETER OYINKENIMIEMI AFFEN, J.C.A. (Delivering the Leading Judgment): Introduction The Appellant [Francis Momoh] was arraigned on 8/11/2018 before the Lagos Division of the Federal High Court (“the lower Court”) alongside three co-defendants on a 45-count charge of conspiracy and money laundering in Charge No. FHC/L/238/2018: Federal Republic of Nigeria v Engr. Tuoyo Omatsuli & 3 Ors, to which they all pleaded ‘not guilty’. The charge was subsequently amended once and again in the course of trial: the extant one being the 2nd Amended 52-count charge (copied at pp. 1381-1406 in Volume II of the records); and the Appellant and his co-defendants, again, indicated a ‘not guilty’ plea on 7/7/2020. In a frantic bid to discharge the non-shifting burden of establishing guilt on the criminal threshold of proof beyond reasonable doubt, the Respondent (qua prosecution) fielded 16 of the 19 witnesses listed in the proof of evidence, and tendered Exhibits ETO1–ETO34. At the close of the Respondent’s case, the Appellant and two of his co-defendants (i.e. Don Parker Properties Ltd and Building Associates Limited) jointly made a submission of no-case-to-answer. Engr. Tuoyo Omatsuli [1st Defendant] did likewise. In a ruling delivered on 11/11/2020 (which lies at pp. 1752–1755 in Vol. III of the records), his Lordship, Saliu Saidu, J. upheld the 1st Defendant’s no-case submission and discharged him, but dismissed the joint no-case submission presented by the Appellant and other defendants and ordered them to enter upon their defence. This present appeal, commenced by a Notice of Appeal dated and filed on 2/11/21 but deemed properly filed on 9/11/21, is an expression of the Appellant’s discontent with the part of the ruling overruling their joint no-case submission. As enjoined by the Rules of this Court, the parties filed and exchanged briefs of arguments. The Appellant’s Brief was deemed properly filed on 9/11/21, whilst the Respondent’s Amended Brief and the Appellant’s Reply Brief were deemed properly filed on 20/1/22. This appeal was heard on 20/1/22.
Issues for determination
Whereas a lone issue for determination is distilled in the Respondent’s Brief, namely: “Whether from the evidence adduced by the 1st Respondent (sic) at the lower Court, the learned trial Judge was not right in holding that the Appellant had a case to answer and thereby ordered it to open its defence”, the three issues identified in the Appellant’s Brief as follows:
(a) Whether the lower Court was right, from the state of evidence before the Court, to have held that with regards to the Appellant, a prima facie case has been established against it that will require it to enter its defence?
(b) Whether the evidence led against the Appellant and the 4th Respondent (sic) cannot be severed for being inextricably interwoven such that a discharge of one must as a matter of law affect the others?
(c) Whether the lower Court’s insistence that the Appellant enter its defence despite the paucity of evidence adduced by the 1st Respondent (sic) does not amount to asking the Appellant to establish his innocence contrary to the adversarial system of administration of justice as enshrined in the Constitution of the Federal Republic of Nigeria, 1999 (as amended)?
Upon careful and insightful consideration to the issues identified by the parties as reproduced above, it seems to me that the Respondent’s lone issue encompasses and subsumes the Appellant’s three issues. What is at issue in the instant appeal is the propriety of the lower Court’s dismissal of the Appellant’s no-case submission and calling upon him to enter a defence in light of the testimonial and documentary evidence presented by the Respondent (prosecution). Thus, notwithstanding that the Appellant is the proponent of this appeal, I propose to determine the same on the basis of the Respondent’s lone issue.
Appellant’s submission
The Appellant referred to Ss. 392 and 303 of the Administration of Criminal Justice Act (ACJA) and submitted that the lower Court erred in holding that a prima facie case has been established against him alongside the 2nd and 4th co-defendants, insisting that the evidence put forward by the Respondent, having been thoroughly discredited under cross-examination, was so manifestly unreliable to secure conviction and the burden of establishing a prima facie case at that stage of the trial was not discharged; and that upon a cursory appraisal of the particulars of offences alleged in Counts 1-52 of the 2nd Amended Charge, the relevant statutes and the evidence adduced by the Respondent in proof of each count, the lower Court ought not to have called upon him to open its defence. He referred to the definition of “proceeds” in S. 25 MLPA and contended (based on his appreciation of the testimonial evidence of PW1, PW4, PW11, PW13 and PW15 under cross-examination) that the funds and property or valuables in issue cannot be said to be proceeds of corruption and gratification or other unlawful activity. The Appellant harped on evidence led by prosecution witnesses to the effect that: (i) the contract to recover statutory payments due to NDDC from oil companies was duly awarded to Starline Consultancy Services Ltd by NDDC; (ii) payments made by NDDC to Starline Consultancy Services Ltd in respect thereof were not proceeds of crime; and (iii) that moneys meant for Niger Delta Youths which was paid by Starline Consultancy Services Ltd into various accounts were not meant to bribe any NDDC official to release payments due under the contract. He maintained that the evidence of PW6, PW7, PW8, PW10, PW12 and PW14 confirmed that properties listed in the charge were not acquired from unlawful sources, thus it is not for the sellers to establish the legality of the transaction, citing EFCC v THOMAS (2018) LPELR-45547(CA) at 24-35 –per Nimpar, JCA. The Appellant contended that money laundering cannot stand on its own without an illegal source/activity that constitutes a predicate offence: DAUDU v FRN (2018) LPELR-43637(SC); that the Respondent sought to establish that funds in the various accounts in the respective banks were proceeds of unlawful activity by calling PW2, PW3, PW5 and PW9 (who are bankers) but failed to substantiate these allegations as the said witnesses admitted that the accounts were not flagged notwithstanding that the funds exceeded statutory limit because they lodged a report with EFCC which conducted enquiry thereon and found that the source of the funds from NDDC was not unlawful.
The Appellant further contended that the Respondent failed to adduce cogent, compelling, and conclusive circumstantial evidence to establish the elements of conspiracy, calling in aid ONYEYE v STATE [2012] 15 NWLR (PT. 1324) 586, STATE v SALAWU (2011) LPELR-8252(SC), LORI v STATE (1980) 8-11 SC 86 and LEYE ADEJUYIGBE v FEDERAL REPUBLIC OF NIGERIA (2017) LPELR-43801 (CA). The Appellant equally underscored the separate and distinct personality of a company from its proprietors, directors or human agents as enunciated in SALOMON v SALOMON (1897) AC 22 and ROYAL PETROLEUM CO. LTD v FIRST BANK OF NIGERIA LTD [1997] 6 NWLR (PT. 510) 584 and maintained that S. 25 MLPA makes it clear that neither the Appellant nor the 2nd and 4th Respondents are Designated Non-Financial Institutions (DNFIs) required to submit reports to the Federal Ministry of Industry, Trade and Investment, especially as they were not invited/questioned and no investigation was conducted, placing reliance on S. 36(4) CFRN, S. 20(1) NFIU Act 2018 and the case of GYANG & ANOR v COP, LAGOS STATE & ORS (2013) LPELR-21893(SC) at 12-13 and insisting that the testimonial evidence of PW16 and Exhibits ETO 25A/ETO 25B reveal that no notice of non-compliance was served on Building Associates Ltd and Don Parker Properties Ltd, nor reference made to Federal Ministry of Industry Trade and Investment. He argued that the NFIU is the appropriate authority to enquire into non-compliance by a DNFI under the NFIU Act, as such the power hitherto vested on EFCC under S. 10(1) MPLA is spent; that the Respondent failed to establish the actus reus or mens rea (or both) of the alleged offences, citing FAWEHINMI v IGP (2002) LPELR-1258(SC) (on the illegality of arresting a suspect without sufficient evidence upon which to charge him/her); DIAMOND BANK PLC v HRH EZE DR. PETER OPARA (2018) LPELR-43907 (SC) at 27, OTERI & ORS v OKORODUDU & ANOR (1970) ALL NLR 199 and OGUNDELE & ANOR v AGIRI & ANOR (2009) LPELR-2328 (SC) at 36 (on the proposition that suspicion however great, grave or strong, goes to no issue); that where two or more persons are jointly charged and the evidence adduced is inextricably woven around all of them as in the instant case, the discharge of one (or some) for want of convicting evidence automatically affects all others since the evidence is tied together like Siamese twins at the umbilical cord with their mother, citing CHIEF EMMANUEL EBRI v THE STATE (2004) 11 NWLR (PT. 885) 589 at 604 –per Niki Tobi, JSC; that since all the alleged unlawful transactions are tied to alleged involvement of Engr Tuoyo Omatsuli [1st Defendant] in unlawful activities whilst being a public officer, his discharge dislodges the charges against the Appellant, insisting that one cannot put something on nothing, it will collapse: UAC v MCFOY (1962) A.C.152; and that the 1st Defendant’s discharge shows that the prosecution’s case is manifestly unreliable such that no reasonable Court could safely convict the Appellant, citing OKORO v. STATE (2012) LPELR-7846 (SC).
The Appellant reiterated that the alleged illicit origin of funds (which is the fulcrum of the charges preferred against the Appellant) is unsustainable since all the transactions alleged to be unlawful activities are connected to the 1st Defendant already discharged by the lower Court on the basis of evidence that is intricately intertwined and cannot be severed. The case of OGUNBODEDE v FRN (2018) LPELR-44883(CA) at 39–41 was referred to. He submitted that his right to fair hearing enshrined in S. 36 (1) CFRN was undermined when the lower Court overruled his no-case submission notwithstanding the paucity of evidence, insisting that there is no obligation on an accused to establish his innocence under our accusatorial criminal justice system wherein doubts are resolved against the prosecution, citing IGABELE v THE STATE (2006) 6 NWLR (PT. 975) 100 at 127, MUMUNI v THE STATE (1975) 6 S.C. 79 and FRN v KAYODE BECKLEY [2020] 16 NWLR (PT 1750) 219 at 257-258. He equally cited JIM-JAJA v C.O.P. [2011] 2 NWLR (PT. 1231) 375 at 393, USMAN v THE EXECUTIVE CHAIRMAN, EFCC (2018) LPELR-44678(CA) OSADIM v TAWO (2009) LPELR-8209(CA), OKWUDIBA & ORS v NWANKWO & ORS (2018) LPELR-46074(CA) pp. 35-37 WILLOUGHBY v INTERNATIONAL MERCHANT BANK [1987] 1 NWLR 105 at 132 in urging this Court to allow the appeal, set aside the part of the ruling of the lower Court overruling the no-case submission, and discharge and acquit him accordingly.
Respondent’s submission
The Respondent contends that credible evidence (which was neither discredited nor found unreliable) was adduced in proof of the essential elements of the offences charged under the Money Laundering (Prohibition) Act, 2011 (“MLPA”) and the lower Court rightly dismissed the joint no-case submission presented by the Appellant and two co-defendants. The Respondent restated the principles governing no-case submission in S. 302 of the Administration of Criminal Justice Act, 2015 (“ACJA”), and cited a host of decided cases including, notably, DABOH & ANOR v. STATE (1977) 5 SC 197 at 209 –per Udo-Udoma, JSC and AJULUCHUKWU v STATE [2014] ALL FWLR (PT. 749) 1015 on what the Court looks out for when grappling with a no-case submission. The Respondent maintained that the definition of “unlawful act” in S. 15(6) MLPA reveals an all-crime approach to the offence of money laundering under S.15(1), (2) and (3) thereof, which covers proceeds (whether directly or indirectly) from any criminal act under any law in Nigeria, otherwise known as predicate offences, citing FRN v YAHAYA (2015) LPELR-24269(CA) and S. 25 MLPA, and insisting that it is immaterial who launders the money: the perpetrator of the predicate offence, his agent, nominee, associate or any other person can be guilty of laundering the proceeds of crime vide OGUNBODEDE v FRN (2018) LPELR-44883(CA). Guided by the cases ofDAUDU v FRN [2018] 10 NWLR (PT. 1626) 169, FRN v ADAMU (2018) LPELR-46024 (CA) and KALU v FRN (2012) LPELR 9287 (CA) andBASHIR v FRN (2016) LPELR-40252(CA), the Respondent examined the ingredients of the offences with which the Appellant is charged in Counts 1, 17, 19, 21, 24, 25, 26, 27, 28 and 29, as well as summarised the testimonial evidence of PW4, PW11, PW1, PW2, PW3, PW5, PW13 and PW15; and contended that the evidence adduced disclosed that the huge payments made by Starline Consultancy Services Ltd to the 1st Defendant through proxies (including, notably, Building Associates Ltd of which the Appellant is the managing director) were directly or indirectly proceeds of official corruption and gratification, which proceeds were used to acquire and/or transfer various landed property situate at Lekki Peninsula, Eti-Osa, Lagos as shown in Exhibits ETO 12, ETO 18 and ETO 22; that there is also clear evidence that the Appellant and his co-defendants transformed funds that are proceeds of unlawful activity into property as well as disguised the illicit origin of the payments made by Starline Consultancy Services Ltd into the account of Building Associates Ltd as “appreciation” by applying the said funds to purchase property.
The further submission of the Respondent is that the evidence adduced and exhibits tendered clinically show that the sum of N3.645 billion paid by Starline Consultancy Services into the account of Building Associates Ltd (of which the Appellant is the managing director), which account was nominated by Engr. Tuoyo Omatsuli (1st Defendant), constitutes proceeds of corruption and gratification; and that since the funds received by Building Associates Ltd were largely transferred and utilised for the benefit of the Engr Tuoyo Omatsuli and his company [Don Parker Properties Ltd], the lower Court was right in dismissing the no-case submission in relation to the Appellant and two co-defendants. The Respondent insisted that the Appellant is the alter ego of Building Associates Limited, which is a Designated Non-Financial Institution (DFNI) under and by virtue of the 2013 Regulations issued by the Minister of Industry, Trade and Investment (ETO 34) pursuant to the MLPA [which has the force of law and can be taken judicial notice of by the Court vide EJEGI v C. O. P. (1977) LPELR-1060(SC) and OGBOJA v ACCESS BANK PLC [2016] 2 NWLR (PT. 1496) 219 at 317- 318], that service of notice of default is not a precondition for preferring a criminal charge against a DNFI under the MLPA or any other law, hence no such law has been cited; that the Appellant’s contention that the operative law is not the MLPA 2011 but the NFIU Act 2018 which enjoins DNFIs to make declarations to the NFIU and not EFCC misconceives the legal effect of repeal of an enactment, insisting that any right accrued or liability incurred under a repealed enactment, including the right of the State to prosecute offences committed under a repealed law remain unaffected. Reference is made to S. 6(1) of the Interpretation Act, 2004 and the cases of BUKAR v QUEEN (1961) LPELR-24995(SC), NTOE ANDREW ANSA & ORS v REG. TRUSTEES OF PRESBYTERIAN CHURCH OF NIGERIA (2007) LPELR 4636 (CA), WAGBATSOMA v FRN (2015) LPELR -24649(CA) and ONTARIO OIL & GAS NIG LTD v FRN (2015) LPELR-24651(CA) at p. 76; and that the position would have been different if it was a procedural (as opposed to a substantive) legislation that was in issue, in which case the operative law would be the enactment in force at the time the right or liability is being activated, citing ADIO v STATE (1986) LPELR-184(SC).
The Respondent pointed out that the Appellant alleged that there are contradictions in the evidence adduced by prosecution witnesses but failed to demonstrate same; that for inconsistency or contradiction in evidence of the prosecution to negatively affect its veracity, it must be materially significant to the extent that it has an overall negative impact on the prosecution’s case vide JOHN v STATE [2011] 18 NWLR (PT. 1278) 353 and
STATE v AZEEZ & ORS (2008) 4 SC 188; that whereas a piece of evidence is contradictory to another if it asserts or affirms the opposite of what the other asserts and not necessarily when there are some minor discrepancies in the details [see IKUEPENIKAN v STATE (2011) 1 NWLR (PP.
1229) 449 and AYO GABRIEL v STATE (1989) 12 SCNJ 33], the sketchy extracts from the testimonial evidence of PW1, PW4, PW11, PW13 and PW15 highlighted in Appellant’s brief do not constitute contradictions as no witness testified the opposite of what he earlier testified or what another witness testified; that
no amount of brilliance in the address of counsel can make up for dearth of evidence to prove, disprove or demolish facts in issue, calling in aid the cases of OSIGWE v NWIHIM [1995] 3 NWLR (PT. 386) 752 (CA) and ISHOLA v AJIBOYE [1998] 1 NWLR (PT. 532) 71 (CA). The Respondent maintained that even though EFCC Office (like the police) is ordinarily not a Tribunal or Court where the
principle of fair hearing in public is constitutionally obligatory as held in ONYUIKE v PEOPLE OF LAGOS STATE (2013) LPELR-24809(CA) at 26-29, the Appellant’s rights were not breached: he was interviewed and made extra-judicial statements that were tendered as exhibits at the trial; that the essence of a charge is to give notice of allegation against an accused person and counts in a charge do not offend fair hearing, insisting that the charge was read to the Appellant who entered a plea and
prosecution witnesses were duly cross-examined and a no-case submission was raised, etc., before the Court called upon the Appellant to enter upon his defence. The Respondent contended that it is fallacious to argue that once an accused person in a joint trial is acquitted, his co-accused must also be acquitted, citing IKEMSON v STATE [1989] 3 NWLR (PT. 110) 455 at 480 and IDIOK v STATE [2008] 13 NWLR (PT. 1104) 225, and insisting that the 1st Defendant’s acquittal was erroneous in the first place and it behoves this Court to correct it. The Respondent commended the case of OGUNBODEDE v FRN (2018) LPELR-44883 (CA) and maintained that the Appellant failed to demonstrate how the findings of the learned trial Judge was wrong as it relates to him nor did he show that prosecution witnesses were discredited or rendered unreliable in any manner or that the evidence led did not link it to the offences charged. The Respondent further reacted to the Appellant’s specific submissions and urged this Court to dismiss the appeal.
Resolution of Appeal
It is merely restating the obvious that our adversary criminal justice system is accusatorial in nature and substance, and every person charged with a criminal offence is presumed innocent until he is proved guilty. See Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). A necessary corollary of the presumption of innocence is that in a criminal trial such as the present, the burden is always on the prosecution to establish the guilt of the accused person beyond reasonable doubt. Quite unlike civil proceedings, this burden on the prosecution is static in a manner akin to the fabled constancy of the ‘Northern Star’ and never shifts to the accused. It is if, and only if, the prosecution succeeds in proving the commission of a crime beyond reasonable doubt that the burden shifts to the accused to establish that reasonable doubt exists. See Ss. 135 and 137 of the Evidence Act, 2011. The Prosecution has the onus of proving all the material ingredients of the offence(s) charged beyond reasonable doubt. See STATE v SADU [2001] 33 WRN 21 at 40. Where the prosecution fails so to do, the charge is not made out and the Court is bound to record a verdict discharging and acquitting the accused. See MAJEKODUNMI v THE NIGERIAN ARMY [2002] 31 WRN 138 at 147. Also, if on the totality of the evidence adduced, the Court were left in a state of doubt or uncertainty, the prosecution would have failed to discharge the onus of proof cast upon it by law and the accused would be entitled to an acquittal. See UKPE v STATE [2001] 18 WRN 84 at 105. However, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt, but such proof as would reasonably and/or irresistibly lead to the inference that the accused committed the offence. See AKINYEMI v STATE [1999] 6 NWLR (PT 607) 449, ONI v STATE [2003] 31 WRN 104 at 122 and MILLER v MINISTER OF PENSION (1947) 2 ALL ER 372 at 373.
For present purposes however, we are not grappling with whether the guilt of the accused person was been established on the criminal threshold of proof beyond reasonable doubt. As stated hereinbefore, this present appeal is an offshoot of the lower Court’s ruling on a no-case submission by the Appellant and two co-defendants. It is well settled that in considering a plea of no-case-to-answer at the close of the prosecution’s case, the Court is not required to enquire into the guilt or otherwise of the accused person per se by undertaking a comprehensive evaluation of evidence adduced thus far. Rather, the Court is preoccupied with ascertaining whether a prima facie case was made out to warrant calling upon the accused person to enter upon his defence. The decision should depend not so much on whether the adjudicating tribunal would at this stage convict or acquit the accused, but whether the evidence adduced is such that a reasonable Tribunal could convict on it. See ATANO v ATTORNEY-GENERAL BENDEL [1988] 2 NWLR (PT. 75) 201. In different words, what the trial Court seeks to ascertain at this stage is whether on the face of the evidence adduced thus far by the prosecution upon whom the non-shifting burden of proof lies, there is a ground for proceeding with the trial in that there is something worth looking at. Generally, there is ground for proceeding where the evidence before the Court is such that if uncontradicted and if believed will be sufficient to prove the case against the accused person. See DURU v NWOSU [1989] 1 NWLR (PT. 113) 24 –per Nnamani, JSC FIDELIS UBANATU v C. O. P. [2000] 2 NWLR (PT. 643) 115 and IKUFORIJI v F. R. N. [2018] LPELR-43884(SC) at 20-21.
The chief rationale behind a no-case submission is that the accused person [who is presumed innocent until proved guilty] should not be saddled with the burden of defending himself when there is no evidence upon which a trial Court could validly convict. In the leading case of IBEZIAKO v COMMISSIONER OF POLICE (1963) 1 ALL NLR 61 at 67-68, the Supreme Court (per Adetokunbo Ademola, CJF) referred to the Practice Note issued by Parker, LCJ (reported in [1962] 1 All E.R. 448) and held that a no-case submission may properly be made and upheld when: (a) there has been no evidence to prove an essential element in the alleged offence; and (b) the evidence adduced by the prosecution has been so discredited as a result of cross-examination, or it is so manifestly unreliable that no reasonable Tribunal could safely convict on it. See also FIDELIS UBANATU v C. O. P. supra at 136 –per Kalgo, JSC, STATE v AUDU (1972) 6 SC 28, ONAGORUWA v STATE [1993] 7 NWLR (PT. 303) 49 and AGBO v THE STATE (2013) LPELR-20388 (SC) amongst a host of other cases.
These requirements have now been codified in S. 303 (3) (a)–(d) of the Administration of Criminal Justice Act, 2015 (hereinafter “ACJA”).
In considering whether or not there is prima facie case against a defendant, the trial Court is bound to confine itself severely to the evidence adduced in Court [see MOHAMMED v STATE [2007] 7 NWLR (PT. 1032) 152 (SC)], and the case of DABOH & ANOR v. STATE (1977) 5 SC 197 at 209 –per Udo-Udoma, JSC donates the proposition that the case ought to proceed for the accused to explain his own side once there is evidence however slight linking him with the offence charged. At pp. 1754-755 in Volume III of the records, the lower ruled thus:
“I have gone through all the Count contained in the Charge against the Defendants in this case and I am satisfy (sic) that the Prosecution has not been able to prove elements of the offences ‘charged against the 1st Defendant to enable this Court call on him to enter his defence, I hereby discharge the 1st Defendant in this case. While, with regards to the 2nd, 3rd and 4th Defendants, I am satisfy (sic) that prima facie case has been established against them that will require them to enter their defence. This is the ruling of the Court.”
What can readily be gleaned from the foregoing is that the lower Court did not proffer any reason(s) for discharging the 1st Defendant and ordering the Appellant and two co-defendants to enter upon their defence. Since the Appellant was charged jointly with his co-defendants in some of the counts, the basis for treating the Appellant and two co-defendants differently from the 1st Defendant is difficult to think through. All four defendants are charged jointly in Counts 1, 23, 24 and 25. Engr Tuoyo Omatsuli [1st Defendant] is charged alone in Counts 2, 34, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45 and 46, and jointly with Don Parker Properties Ltd (2nd Defendant) in Counts 17, 19, 21, 27, 28, 29, 47 and 48. Engr Tuoyo Omatsuli, Don Parker Properties Ltd and Francis Momoh (3rd Defendant/Appellant) are jointly charged in Count 26; whilst Francis Momoh is charged alone in Count 49, and jointly with Building Associates Ltd (4th Defendant) in Counts 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 20, 22, 30, 31, 32, 33, 35, 50, 51 and 52. Given this state of affairs, I reckon that the lower Court ought to have explained why the 1st Defendant was discharged whilst the Appellant and others were ordered to open their defence in light of intricately interwoven evidence led by the prosecution against all of them. Giving reasons for deciding one way or another is an essential, if not indispensable, attribute of judicial decision-making. An unexplained decision (such as the ruling appealed against) is a portrait of arbitrary or whimsical exercise of judicial power. It ought not to be so!
It is forcefully agitated on behalf of the Appellant that the alleged illicit origin of funds (which is the fulcrum of the charge against it) is unsustainable since all the transactions alleged to be unlawful activities are connected to the 1st Defendant already discharged by the lower Court. However, save for Counts 27, 28 and 29 of the 2nd Amended Charge bordering on the running and management of private business other than farming as a public officer, the part of the ruling of the lower Court embodying the discharge of the 1st Defendant [Engr. Tuoyo Omatsuli] has already been set aside in Appeal No. CA/L/1190/2020: FRN v Engr. Tuoyo Omatsuli (the judgment of which was delivered earlier today), wherein this Court held thusly:
“19. It is forcefully agitated on behalf of the Respondent that the charge of money laundering cannot fly in the absence of proof of any predicate offence since the testimony of prosecution witnesses (notably PW4, PW11, PW13 and PW15) is that moneys paid to Starline Consultancy Services Ltd by NDDC was not proceeds of crime, and that the money meant for Niger Delta Youths which was paid into various accounts by Starline Consultancy Services Ltd was also not “bribe” and therefore not proceeds of unlawful act under the MLPA. This argument appears quite attractive at first blush but does not bear close scrutiny. The very fact alone that the evidence adduced reveals that, based on discussions between the Respondent and the Executive Director of Finance and Administration (PW15), Starline Consultancy Services Ltd (which is a contractor with NDDC) was requested to pay, and actually paid, huge sums of moneys totalling N3.645b over a period of two years into the account of Building Associates Ltd (4th defendant) nominated by the Respondent (who was NDDC’s Executive Director Projects at the material time) as “appreciation” to members of Board of NDDC (allegedly to cushion the effect of reaching out to Niger Delta Youths) each time NDDC makes payment to Starline Consultancy Services Ltd, points compellingly to a prima facie case linking the Respondent to the unlawful activities alleged in the 2nd Amended Charge for which some explanation is required from him. The PW11 (who is an employee of NDDC) testified that the Respondent was a signatory to the accounts of NDDC in his capacity as Executive Director of Projects, and some of the approvals for payments to Starline Consultancy Services Ltd signed by him are contained in Exhibit ETO 21.
20. It occurs to me that “appreciation” is ordinarily a gift or other benefit given out of one’s volition or free will: it is not usually requested for by persons (such as the Respondent and PW15) who are in a position to approve payments due to the appreciator, who happens to be a contractor with NDDC. Also, how funds allegedly meant for Niger Delta Youths ended up being associated with the acquisition of choice property situate in Lekki Peninsula, Lagos as alleged in the 2nd amended charge calls for some explanation. This is necessarily so because a public officer (such as the Respondent) is not at liberty to receive any property, gift, favour or benefit of any kind in the discharge of official duties or in relation to any matter connected with the functions, affairs or business of a government department, corporate body, organisation or institution in which he/she is serving; and unless the contrary is proved, a presumption of criminality attends the receipt of any such property, benefit or promise by a public officer or some other person at his instance. See Ss. 8, 17 and 19 of the ICPC Act. As pointed out by learned counsel for the Appellant, the question of whether or not the payments made by Starline Consultancy Services Ltd as aforesaid constitute “bribe” or other unlawful activity under any law as defined in S. 15(6) MLPA is not an inference to be made by a witness of fact such as PW4: it is a conclusion only a Court of law can reach at the end of the case. See A-G, FEDERATION v OGUNRO [2001] 10 NWLR (PT. 720) 175 at 184.
21. It bears emphasising that the tenor of S. 15 MLPA is broad based: it adopts an all-crime approach to the offence of money laundering; and the prosecution may rely on any conduct that constitutes an unlawful act (crime) under any law in Nigeria as a predicate offence. Also, criminal liability is personal and non-transferable, and the mere fact that other members of the NDDC Board who may have benefited from the “appreciation” extended by Starline Consultancy Services Ltd have not been (or are not being) charged alongside the Respondent does not constitute a defence at law, and certainly not a valid basis for discharge and acquittal. See AKPA v THE STATE supra. It therefore seems to me that there was a clear basis for proceeding with the case, and the lower Court ought not to have discharged the Respondent upon a no-case submission. Especially is this so when the lower Court held on the basis of the same piece(s) of interwoven evidence that other defendants jointly charged with him in several counts have a case to answer. The law enjoins the lower Court to call on the accused to explain his own side once there is evidence linking him with the offence charged however slight, as in this case. See DABOH & ANOR v STATE supra.”
As stated hereinbefore, all four defendants are charged jointly in Counts 1, 23, 24 and 25, whilst the Appellant is charged alone in Count 49, and jointly with Building Associates Limited (4th Defendant) in Counts 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 20, 22, 30, 31, 32, 33, 35, 50, 51 and 52. He is also charged along with the 1st and 2nd Defendants in Count 26. Binding case law emphasises the inappropriateness of embarking on a detailed evaluation of the evidence adduced by the prosecution at the stage of no-case submission. See AJIBOYE v THE STATE [1995] 8 NWLR (PT. 414) 408 at 416. The proposition that ‘a ruling on a no-case submission should be as brief as possible’ therefore holds good when the Court is of the opinion that the submission is not well-founded and ought to be overruled, as in the instant case. The rationale is to prevent the Court from falling into the temptation of evaluating the evidence and predetermining the credibility of witnesses, making remarks or observations on the facts in order not to fetter its discretion [see UBANATU v C. O. P. supra and OMISORE v THE STATE (2005) VOL. 1 Q.C.C.R. 148 at 143], or generally “entering effectively into and even deciding the merits of a case, which full course was yet to run”. See EGHAREVBA v F. R. N. (2016) LPELR-40045(SC). Since the lower Court overruled the joint no-case submission of the Appellant and others but upheld that of the 1st Defendant, and this Court has already held in Appeal No. CA/L/CR/1190A/2020 that the lower Court erred in discharging the 1st Defendant [Engr. Tuoyo Omatsuli] at the stage of no-case submission, it certainly would be ill-advised to embark upon a detailed examination of the evidence adduced by the prosecution and/or undertake a rigorous analysis of the copious arguments canvassed by counsel on both sides of the divide, which create the erroneous impression that we are here confronted with whether the Appellant’s guilt has been established at this stage. It therefore seems to me that the arguments forcefully pressed by counsel, including the contention that the Appellant is not a DNFI and the Respondent’s insistence to the contrary, are substantive matters reserved for the trial Court to resolve at the trial. It bears reiterating that the Court’s preoccupation at this stage is not whether the evidence adduced is sufficient to establish guilt, but merely to ascertain whether the prosecution adduced evidence linking the Appellant to the offences alleged, however slight that may be. See DABOH & ANOR v STATE supra.
After judgment was reserved in this appeal, the Respondent forwarded two recent decisions of this Court in CA/LAG/CV/256/2019: FRANCIS MOMOH & ANOR v EFCC & 4 ORS and CA/LAG/CV/608/2019: WESTFIELD ENERGY RESOURCES LTD & 3 ORS v EFCC (both delivered on 15/12/21) affirming the civil (non-conviction based) forfeiture of some property alleged to be proceeds of unlawful activity in the present appeal. The Appellant was quick to point out that steps have already been taken to appeal the said decisions, which cannot be said to have finally determined the rights of the parties. On its part, the Appellant equally forwarded two foreign decisions on civil forfeiture proceedings, viz: (i) UNITED STATES v FUNDS IN THE AMOUNT OF $239 400, 795 F.3d 639 (7th Cir. 2015), and (ii)U.S. v LIQUIDATORS OF EUROPEAN 630 F.3d 1139 (9th Cir. 2011) as persuasive authority. I do not consider the additional authorities forwarded by both parties particularly helpful in determining the instant interlocutory appeal against the dismissal of the no-case submission presented by the Appellant and two co-defendants. This Court will not suffer itself to be inveigled or seduced by these additional authorities into making pronouncements that will prejudge the substance of charges still pending before the lower Court.
Conclusion
This appeal is bereft of merit and ought to be dismissed. I so order. The part of the ruling of the lower Court dated 11/11/2020 dismissing the no-case submission is affirmed, and the Appellant (Francis Momoh) shall enter upon his defence accordingly.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in advance, the elegant leading judgment delivered by my learned brother: Peter O. Affen, JCA. I am in full agreement with the judicial reasoning and conclusion in it. I, too, penalise the appeal with a deserved dismissal. I abide by the consequential orders decreed in the leading judgment.
MUHAMMAD IBRAHIM SIRAJO, J.C.A.: The leading judgment in this appeal, prepared by my learned brother, PETER OYINKENIMIEMI AFFEN, JCA, a draft copy of which made available to me before now, has exhaustively dealt with the lone issue formulated by the Respondent for the determination of the appeal. The issue was so comprehensively covered that any attempt to discuss it further will amount to repetition of the content of the leading judgment. I do not intend to embark on that repetitious exercise. My duty here is to express my total concurrence with the lead judgment which dismissed the appeal and ordered the Appellant, Francis Momoh, to enter his defence, with nothing more to add. There is no scintilla of merit in this appeal. I also dismiss it without much ado.
Appearances:
N. I. Quakers, SAN, with him, Michael Ogunjobi, Esq. and Dauda Abanazoza, Esq. For Appellant(s)
E. E. Iheanacho, Esq. For Respondent(s)
